3: Criminal Law
Learning Objectives
This section examines the fundamental principles of criminal law. It describes the functions of formal criminal
law (what criminal law does and what it cannot do), how crimes differ from civil and moral wrongs, and various
classification schemes used in discussing criminal law. This section also examines the sources of substantive and
procedural criminal law (where we look to find our criminal law), the limitations that the constitution places on
both substantive criminal law and procedural criminal law, and the important concept of the rule of law in American
jurisprudence (legal theory). After reading this section, students will be able to:
• Distinguish between a criminal wrong, a civil wrong, and a moral wrong.
• Identify the many ways in which criminal law is classified.
• Recognize the many sources of substantive and procedural criminal law.
• Identify the limitations that the federal constitution and state constitutions place on creating
substantive laws and enforcing those laws.
• Recognize the importance of rule of law in American jurisprudence and understand the importance
of judicial review in achieving rule of law.
Critical Thinking Questions
1. What does formal law do well? What does formal law not do so well?
2. Should we be able to impose sanctions for violations of moral wrongs?
3. Consider the constitutional requirement of separate but equal branches of government. Why do you
think the drafters of the constitution intended each of the branches of government to be a check on each
other? How does that “play out” when deciding what laws should be made and what laws should be
enforced? What current issues are you aware of that highlight the importance of three separate but equal
branches of government?
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4. How does direct democracy (in the form of ballot measures and propositions) influence substantive
criminal law (creating crimes and punishing crimes). What, if any, are the advantages of using direct
democracy to create and punish crime? What, if any, are the disadvantages?
5. Consider state-wide decriminalization of marijuana possession and use across the nation and the
federal statute banning possession and use of marijuana. How should this federal/state conflict be
resolved? Does your opinion change if the behavior is one that you favor or disfavor?
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3.1. Functions and Limitations of Law
LORE RUTZ-BURRI
Law is a formal means of social control. Society uses laws (rules designed to control citizen’s behaviors) so
that these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because
courts must interpret and enforce these rules, laws differ from many other forms of social control. Both
formal and informal social control have the capacity to change behavior. Informal social control, such as
social media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear,
how they think, how they speak, what people value, and perhaps how they vote. Social media’s impact on
human behavior cannot be overstated, but because these informal controls are largely unenforceable through
the courts as they are not considered the law.
Laws and legal rules promote social control by resolving basic value conflicts, settling individual disputes,
and making rules that even our rulers must follow. Kerper (1979) recognized the advantages of law in
fostering social control and identified four major limitations of the law. First, she noted, the law often cannot
gain community support without support of other social institutions.
1
(Consider, for example, the United
States Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954),
which declared racially segregated schools unconstitutional. The decision was largely unpopular in the
southern states, and many had decided to not follow the Court’s holding. Ultimately, the Court had to
call in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with
community support, the law cannot compel certain types of conduct contrary to human nature. Third, the
law’s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the
law changes slowly.
2
Lippman (2015) also noted that the law does not always achieve its purposes of social control, dispute
resolution, and social change, but rather can harm society. He refers to this as the “dysfunctions of law.”
“Law does not always protect individuals and result in beneficial social progress. Law can be used to repress
individuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional
role of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small
number of individuals rather than promoting the welfare of society or is impeding the enjoyment of human
rights.”
3
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company.
3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.
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Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be used to
harass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and
prejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes
as an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don’t
always fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in
which battered women use force to repel consistent abuse because of the law’s requirement that the threat
be immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges
are also concerned about maintaining respect for the law and hesitate to introduce change that society is not
ready to accept); that the law denies equal access to justice because of inability to pay for legal services; that
courts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war
and crisis; that reliance on law and courts can discourage democratic political activism because Individuals
and groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from
building political coalitions for elections; and finally, that law may impede social change because it may limit
the ability of individuals to use the law to vindicate their rights and liberties.
4
4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.
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3.2. Civil, Criminal, and Moral Wrongs
LORE RUTZ-BURRI
This chapter is about people committing crimes—engaging in behavior that violates the criminal law—and
how society responds to these criminal behaviors. Crimes are only one type of wrong. People can also violate
civil law or commit a moral wrong and not be guilty of any crime whatsoever. So, what is the difference
between a civil wrong, a criminal wrong, and a moral wrong?
Civil Wrongs
A civil wrong is a private wrong, and the injured party’s remedy is to sue the party who caused the
wrong/injury for general damages (money). The plaintiff (the injured party) sues or brings a civil suit
(files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals,
businesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions
can also be individuals, businesses, multinational corporations, governments, or state agencies.
Civil law covers many types of civil actions or suits including: torts (personal injury claims), contracts,
property or real estate disputes, family law (including divorces, adoptions, and child custody matters),
intellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws
(which covers wills and probate).
The primary purpose of a civil suit is to financially compensate the injured party. The plaintiff brings
the suit in his or her own name, for example, Sam Smith versus Joe Jones. The amount of damages is
theoretically related to the amount of harm done by the defendant to the plaintiff. Sometimes, when the jury
finds there is particularly egregious harm, it will decide to punish the defendant by awarding a monetary
award called punitive damages in addition to general damages. Plaintiffs may also bring civil suits called
injunctive relief to stop or “enjoin” the defendant from continuing to act in a certain manner. Codes of the
civil procedure set forth the rules to follow when suing the party who allegedly caused some type of private
harm. These codes govern all the various types of civil actions.
In a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the injury and
the harm. To meet this burden, the plaintiff will call witnesses to testify and introduce physical evidence. In
a civil case, the plaintiff must convince or persuade the jury that it is more likely than not that the defendant
caused the harm. This level of certainty or persuasion is known as preponderance of the evidence. Another
feature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually
responsible for the harm.
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Criminal Wrongs
Criminal wrongs differ from civil or moral wrongs. Criminal wrongs are behaviors that harm society as
a whole rather than one individual or entity specifically. When people violate the criminal law there are
generally sanctions that include incarceration and fines. A crime is an act, or a failure to act, that violates
society’s rules. The government, on behalf of society, is the plaintiff. A criminal wrong can be committed
in many ways by individuals, groups, or businesses against individuals, businesses, governments or with no
particular victim.
Criminal Defendant Victim Examples
Individual Self or with no particular victim Gambling or drug use
Individual Other individual(s) Assault, battery, theft
Individual Business or government Trespass, welfare fraud
Group of individuals Individual(s) Conspiracy to commit murder
Group of individuals Government or no particular victim Riot, rout, dis ly conduct
Business entity Individuals Fraud
Business entity Government or no particular victim Fraud, pollution, tax evasion
Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its
government agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as
incarceration, fines, restitution, community service, and restorative justice program are used to express
societal condemnation of the criminal’s behavior. Government attorneys prosecute, or file charges against,
criminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular
victim. The title of a criminal prosecution reflects this: “State of California v. Jones,”, “The Commonwealth
v. Jones,”, or “People v. Jones.”
In a criminal jury trial (a trial in which a group of people selected from the community decides whether
the defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether
the defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince
the jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law
that harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also
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present physical evidence suggesting the defendant committed the crime. Just as a private individual may
decide that it is not worth the time or effort to file a legal action, the state may decide not to use its
resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the
state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–for
example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek monetary
damages against the defendant.
Moral Wrongs
Moral wrongs differ from criminal wrongs. “Moral law attempts to perfect personal character, whereas
criminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.”
1
There are no codes or statutes governing violations of moral laws in the United States.
“The Witness” Exercise
Watch the 2015 Netflix documentary “The Witness” in which Bill Genovese re-examined what was said, heard
and reported about his sister, Kitty Genovese. This frequently cited examples of a moral wrong involve the story
of thirty-seven neighbors who purportedly did nothing when “Kitty” Genovese was stabbed to death outside
their apartment building in New York City in 1964. There are many discrepancies about this story and what the
neighbors knew, or didn’t know, and what they did, or didn’t do, but the general belief is that they had at least a
moral obligation to do something (for example, call the police), and by failing to do anything, they committed a
moral wrong. Ultimately, none of the neighbors had any legal obligation to report the crime or intervene to help
Ms. Genovese.
Overlap of Civil, Criminal, and Moral Wrongs
Sometimes criminal law and civil law overlap and an individual’s action constitute both a violation of
criminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil
assault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery.
Consider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and
her friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson,
the Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown
and Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive
damages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries
inflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.
Sometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary
tools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For
example, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though
there is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there
is no legal action that can be filed for committing a moral wrong, there really is not any overlap between
criminal wrongs, civil wrongs, and moral wrongs.
1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.
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3.3. Sources of Criminal Law: Federal and State Constitutions
LORE RUTZ-BURRI
Where do you look to see if something you want to do violates some criminal law? The answer is “in
many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional
conventions, so you would need to review federal and state constitutions. Other criminal laws result from the
legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal
law results from the work of administrative agencies, so you need to review state and federal administrative
rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These
court opinions, called “decisions”, are published in both official and unofficial reporters, but thanks to the
Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended
from the English common law. This law developed over time, through custom and tradition, and it is a bit
more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and
is often referred to in case decisions.
The Federal Constitution—The Constitution of the United States
Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and
treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly,
the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant
procedural constraints on the government when it seeks to prosecute individuals for crimes. The
Constitution also establishes federalism (the relationship between the federal government and state
governments), requires the separation of powers between the three branches of government (the judicial
branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not
directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred
because they intertwined with the enumerated powers).
Constitutional Limitations on Criminal Law and Procedure
The drafters of the federal Constitution were so concerned about two historic cases of abuse by English
Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types
of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto
laws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount
and types of evidence that is required of the government in to successfully prosecute an individual.
Bills of attainders are laws that are directed at named individual or group of individuals and has the effect
of declaring them guilty without a trial.
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Most of the other limitations are found within the Bill of Rights, the first ten amendments to the
U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints
concerning how strong the national government should be and how strong state governments should be.
Even as the original federal constitution was being circulated and ratified, the framers were thinking about
the provisions that became known as the Bill of Rights.
Music & Law Exercise
For a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical
composed by Lin-Manuel Miranda.
The First Amendment limits Congress’s ability to pass laws that limit free speech, freedom of religion,
freedom of assembly and association. The Second Amendment limits Congress’s ability to outlaw the
personal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that
govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets
limits on the government’s ability to impose certain types of punishments, impose excessive fines, and set
excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice
procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at
a minimum, there be some rational reason for treating people differently. For example, states can pass laws
prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in
protecting the health and welfare of its citizens. These amendments discussed more fully below, added several
constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal
government’s ability to define crimes.
The Incorporation Debate
When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal
government. Individual states each had their own guarantees and protections of individuals’ rights found
in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important
tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil
Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins
the states from depriving any person of life, liberty, or property, without due process of law. It prohibits
states from adopting any laws that abridge the privileges and immunities of the citizens of the United States
and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2.
The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over
decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in
one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-
case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process
Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of
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Rights that are “implicit in the concept of ed liberty.”
1
For example, in 1925 the Court recognized
that the First Amendment protections of free speech and free press apply to states as well as to the federal
government.
2
In the 1960s, the Court selectively incorporated many of the procedural guarantees of the
Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill
of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free
from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S.
___ (2019).
First Amendment Limitations
Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has
recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example,
picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom
of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989).
The Court upheld a local ordinance prohibiting public indecency when applied to business establishment
wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has
recognized political speech and commercial speech as protected by the First Amendment as well. See,
e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed
some speech not worthy of protection, and consequently may be limited. According to the Court, non-
protected speech includes libel and slander, fighting words, words that present a clear and present danger
when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are
certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have
never been thought to raise any constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend
to incite an immediate breach of peace.” Similarly, the Court has said anti-hate crime statutes permissibly
limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech.
See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).
The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Congress
cannot make laws that either create a religion (these violate the Establishment Clause) or target and
interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the
First Amendment guarantees that people have the right to freely associate and assemble with others. Thus,
Congress cannot make laws that completely limit people’s ability to gather together peaceably. However,
1. Palko v. Connecticut, 302 U.S. 319 (1937).
2. Gitlow v. New York, 268 U.S. 652 (1925)
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the Court has indicated that the government can place reasonable time and manner limitations based on
the location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).
Second Amendment Limitations
Legislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot
completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia
v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the
military). According to the Court, the Second Amendments’ protections apply equally to the states. See,
McDonald v. Chicago, 561 U.S. 742 (2010).
Fourth Amendment Limitations
The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under
the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be
reasonable. Under the most restrictive interpretation, the Amendment requires that government officers
need a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in
many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s
constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive
interpretation of the Fourth requiring a warrant for every search and seizure conducted.
Fifth Amendment Limitations
The Fifth Amendment protects against self-incrimination (having to disclose information that could
ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness
against himself.” Defendants have the right to not testify at trial and the right to remain silent during a
custodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides
for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law,
and prohibits taking private property for public use (a civil action). The Court has incorporated the double
jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a
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95
person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth
Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated
to the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment
also entitled citizens prosecuted by the federal government to the due process of law. This is discussed more
fully below as a Fourteenth Amendment right.
Sixth Amendment Limitations
The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public
trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the
right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel
witnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal
court process, but because of the Fourteenth Amendment’s Due Process Clause, these rights also apply to
defendants in state criminal cases.
Eighth Amendment Limitations
Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that
punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit
the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment
also prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines
in terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting
defendant’s $42,000 land rover was excessive compared to the maximum fine he could get for his crime
($10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but
rather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than
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