Fundamentals of Criminal Law and Procedure

Fundamentals of Criminal Law and Procedure

  1. Should morality, in and of itself, be considered a sufficient basis for defining particular conduct as criminal? Give reasons to support your view.

Criminal law is greatly influenced by rules of public opinion, order and customs. We cannot, however, define a crime solely based on what we consider to be wrong. Morality goes a long way in determining what is regarded as legal, but it takes a lot more than just public opinion and customs to establish the dictates of criminal law. One’s behavior might be immoral and downright bad manners, but this is not enough to have the person prosecuted as a criminal. Criminal law goes to the root of what is established in written law as punishable. Each state establishes its own laws with regard to what is punishable as a criminal offence. Yes, ethics and morality are major ingredients of criminal law, but they cannot be used in the prosecution of an offender if the said offence is not put down as a written statute in the said state.  Criminal law delimits misconduct, and this is the basis upon which the police, prosecutors and the judiciary get a basis to punish and apprehend criminals (Fuller, 1942). The regulation of such social misconduct is achieved through public opinion of what’s wrong and what’s right. However, the moral views held by the various players who come up with criminal statues are the basis of a country’s criminal law system. Based on this, I do not think that morality alone is a sufficient ingredient to establish criminal statutes. Different groups view diverse actions and conduct differently. Morality is relative, thus it should not be the basis of criminal prosecutions. As it is, some criminal offences are not out rightly offensive or immoral to the conscious (Fuller, 1942). For instance, traffic offences, such as speeding cannot be said to be immoral. If morality was the sole ingredient in the construction of criminal statues, there would be a repeat of disagreements between the makers of such statues for morality is relative depending on class and social orientation.

  1. What are the chief distinctions between the civil and criminal law? Why do the criminal and civil law sometimes overlap?

Criminal law is more common to laymen than civil law is. One of the major differences between criminal and civil law is that criminal law proceedings are instituted by the government through the prosecution of a suspect. In civil law, however, the institution of a suit is made by private individuals (Erstad, 2018, October 29).

The second distinction between civil and criminal law is in their modes of effecting punishment. For criminal law, a guilty offender is punished through jail term, paying of a fine to the government, or through the death penalty. Crimes can either be felonies or misdemeanors. Felonies carry a maximum incarceration period of one year, while misdemeanors carry a maximum incarceration term of less than one year. In civil matters, the mode of punishment is never punitive. The losing party cannot be executed or incarcerated. In most cases, the court orders the defendant to pay damages to the plaintiff (Erstad, 2018, October 29).

In civil matters, the burden of proof is on a balance of probabilities and it is upon the plaintiff to proof.  When the plaintiff makes a prima facie case against the defendant, the burden of proof then shifts to the defendant for a rebuttal. In criminal matters on the other hand, the prosecution must proof beyond reasonable doubt that the accused person is guilty of the stated offence. The defendant is never expected to prove that he is innocent. The situation changes in cases for instance, where the defendant claims that he or she is insane. The defendant must in such case proof that they are insane and cannot take part in the criminal proceedings without special conditions being observed (Erstad, 2018, October 29).

Civil and criminal matters sometimes overlap in cases where both criminal and civil issues stem from the same matter. In such a case, the criminal issues must be separated from the civil issues so as to establish a fair judgment. The OJ Simpson case was one in which civil and criminal matters were seen to intertwine (Erstad, 2018, October 29).

  1. To what extent is the English common law significant in contemporary American criminal law?

American Criminal Law is founded on English Common law. English Common law is based on oral traditions and judges created this source of law when they made judgments using the customs of medieval England. This, unlike the American Criminal law, was not in any statute, thus it did not give it binding authority.  The American criminal law is written in statutes. The founding fathers of the nation borrowed from the English common law and brought these laws to the colonies. This is how English Common Law found its way into the American statues. Common law embraced precedence and this has been embraced in the America Criminal law statutes as well (Lumen Candela, n.d.).

  1. What is the essential difference between substantive criminal law and procedural criminal law? Can you give examples of each?

The American court system is dual in nature. The substantive and procedural criminal law systems make up this dualism. Substantive criminal law defines the substance upon which criminal matters are to be judged. It discusses how members of the society are expected to behave. It dictates how guilt or innocence is to be established for various crimes and also stipulates the punishments for these crimes (Longley, 2018). An example of substantive law in America is the Uniform Commercial Code of 1952.

Procedural criminal law, on the other hand touches on the procedures for formulating, administering and enforcing substantive law. Procedural criminal law goes into looking at the way witness testimonies are recorded, the admissibility and the handling of issues by the court in order to establish the truth (Longley, 2018). The United States Criminal Procedure is an example of procedural law.

 

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