Chapter 2 Flashcards
Latin words and common law
Lex talionis: Latin for “an eye for an eye, a tooth for a tooth”; retaliation or revenge that dates back to the Bible and the Middle Ages. Used in the Code of Hammurabi.
System of law today based on common law: collections of rules, customs and traditions of medieval England. Today, Common Law refers to the law that is made by the courts of Appeal as opposed to state legislatures, congress, and regulatory agencies.
Stare decisis: Latin for “to stand by a decision”, a doctrine referring to court precedent, whereby lower courts must follow (and render the same) decisions of higher courts when the same legal issues and questions come before them, thereby not disturbing settled points of law. Stare decisis obligates a court to follow its own precedent in cases of similar fact situations or analogous fact scenarios – thus bring consistency and predictability to the law. In the Federal System, this means that district courts in the same appellate district must follow the decisions handed down by the higher appellate court, and the appellate court itself will follow its own prior decisions in similar cases.
Federalism and terms
Federalism: A type of government that divides powers between a national (federal) government and governments of smaller geographic territories, including states, counties, and cities.
Statute: A law enacted by Congress (a federal law) or by a state legislature (a state law); also known as statutory law.
Code or ordinance: Refers to a law enacted by a local lawmaking body (a county board or a city council). For example, municipal laws.
Civil Law and Courts: handle law suits between people that do not arise out of the criminal law. These suits are based on damages to people brought about by negligence, breach of contracts, business disputes, divorce, and the like.
Criminal Law and Courts: Laws passed by legislative bodies and the courts where crimes against society and the law are adjudicated.
Hierarchy of law: federal
The U.S. Constitution: Takes precedence over state constitutions and law even if they conflict. Article VI, of the Constitution says, “This Constitution, and the laws of the United States…shall be the supreme law of the land, and the judges in every state shall be bound thereby…”
Federal statutes: Civil and criminal laws enacted by Congress.
Administrative laws: Orders, directives, and regulations for federal agencies, such as workplace laws promulgated by the Occupational Safety and Health Administration (OSHA).
Federal common law: Published decisions from the U.S. Supreme Court and the U.S. Circuit Courts of Appeal, which, like the common law from England establish legal “precedence” and must be followed by lower courts in the federal and state systems.
Hierarchy of law: state
State constitutional law: State constitutional rulings (from a state’s highest court) that may give greater protection or rights than the federal constitution but may not give less, and that contain protections similar to the U.S. Constitution: civil rights and liberties, separation of powers, and checks and balances.
State statutes: Laws enacted by state legislatures, includes criminal laws like statutes prohibiting murder or robbery.
State common law: Precedent established in published opinions by state appellate judges when deciding civil or criminal cases.
Hierarchy of law: city/county
Municipal ordinances or codes govern many aspects of our daily lives. Examples:
Building and construction standards, Rent control, Noise and nuisance regulations, Public health and safety, Business licenses, and Civil rights and antidiscrimination.
Criminal and Civil Law terms
Criminal law: Body of law defines criminal offenses and prescribes punishments for their infractions.
Civil law: All noncriminal law, applies to civil matters. Predominately judge made law – common law.
Plaintiff: Party bringing a lawsuit or initiating a legal action against someone else.
Defendant: Party against whom a case is brought – can refer to both civil defendant and criminal defendant – though in criminal court a defendant is usually referred to as “the accused.”
Burden of proof: Requirement state must meet to introduce evidence or establish facts. Prosecution has the burden of proving their case.
Reasonable doubt: Standard used by jurors to arrive at a verdict in criminal cases.
Differences Between Civil and Criminal Law
Burden of proof:
Civil - preponderance of the evidence.
Criminal - beyond a reasonable doubt.
Nature of crime:
Civil - a private wrong.
Criminal - a public wrong.
Parties:
Civil - case is filed by an individual.
Criminal - some level of government files charges against an individual.
Punishment:
Civil - usually a fine; no incarceration.
Criminal - jail, fine, probation, prison, death.
Example:
Civil - divorce proceedings, child custody, landlord/tenant dispute.
Criminal - person accused of committing a crime or neglecting a responsibility.
Substantive vs. Procedural Law
Substantive law: Body of law that spells out elements of criminal acts.
Procedural law: Rules that set forth how substantive laws are to be enforced (ie. search warrants, Miranda warnings).
Legal jurisdiction: Authority to make legal decisions and judgments.
Mens Rea vs. Actus Reus
Mens Rea: intent versus motive to commit crime.
Refers to the “criminal intent.”
Intent, specific: a purposeful act or state of mind to commit a crime.
Motive: the reason for committing a crime.
Expressed through a variety of terms, differ from state to state.
Actus Reus: the act.
Crime must be a voluntary, overt act. The intentional failure to act in case of a legal duty, can also be criminal.
Rule for establishing criminal liability: “Concurrence.”
Prosecutor must prove two things:
1. It was this defendant/accused who committed the illegal act and not someone else; and
2. the defendant/accused had the required mental state or intent.
Felonies and Misdemeanors
Felony: A serious offense with a possible sentence of more than a year in prison.
Many states divide felonies into different classes with increasing years of incarceration for each level of offense
Misdemeanor: A lesser offense, punishable by a fine or up to one year in a local jail. Often classified under state laws.
Offense Definitions and Categories: Crimes against persons
- Violent crimes.
Homicide - Justifiable: acts of war, self-defense, legal state or federal executions, or when a police officer uses lawful lethal force.
Excusable: killings that are wholly accidental.
Murder (intentional) - 1st Deg.: premeditated and deliberated intentional killing with malice of forethought. 2nd Deg.: intentional with malice but impulsive, not premeditated and deliberated.
Felony-Murder: if killed during a felony perp. will be charged with 1st deg.
Manslaughter (accidental) - Voluntary: intentional but without malice.
Involuntary: unintentional, negligent.
Sexual assault - Rape: penetration of any orifice of the body. 1st deg. most serious. Strict liability/
statutory rape: sexual contact between major and minor.
Robbery - Taking or attempting to take, anything of value from another person by force or threat of force or violence, where the victim is in fear of injury or death. Robbery requires a face-to-face taking, a combination of theft and assault.
Aggravated assault - Unlawful attack upon another for inflicting severe or aggravated bodily injury. Assault is placing someone in fear. Battery is slight injury usually involving a slap or kick. Aggravated assault is serious injury using a weapon. - FBI’s definition: Offenses that involve force or threat of force.
Offense Definitions and Categories: Crimes against property
- Crimes during which no violence is perpetrated against a person.
Burglary - Unlawful entry of a structure to commit a felony or theft. The use of force to gain entry need not have occurred, nor does anything of value have to be stolen.
Larceny-Theft - Unlawful taking, carrying, leading, or riding away of property from the possession of another.
Includes attempted thefts, thefts of bicycles, motor vehicle parts, shoplifting, pocket-picking, or the stealing without force, violence or by fraud.
Motor Vehicle Theft - Theft or attempted theft of a land-based, self-propelled vehicle that does not run on rails and is not classified as farm equipment.
Arson - Willful or malicious burning of or attempting to burn, with or without intent to defraud, a dwelling house, a public building, a motor vehicle or aircraft, personal property of another, and so forth.
Offense Definitions and Categories: Public order crimes
Offenses that violate a society’s shared norms.
Sometimes called “victimless” or “complaintless” crimes.
Offenses include drug-related crimes, prostitution, public drunkenness, gambling, and various forms of disorderly conduct. Generally refers to anything seen to victimize only the offender.
Offense Definitions and Categories: White collar crime
Crimes committed by individuals in the course of their professions or occupations. Two types:
First type: Crimes committed in the course of offenders’ occupations. These crimes could include commercial bribery and kickbacks, embezzlement, insider trading, or expense account fraud.
Second type: Crimes incidental to and in furtherance of business operations. For example, producing false company financial statements or using deceptive advertising.
Offense Definitions and Categories: Organized crime
Crimes committed by members of illegal organizations.
Racketeering activities (Include bribery (including sports), counterfeiting, embezzlement of union funds, mail and wire fraud, money laundering, obstruction of justice, murder for hire, drug trafficking, prostitution and sexual exploitation of children…).
May include other state crimes like murder, kidnapping, etc.
