8.2: The Nature of Criminal Law
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)When crime occurs in the context of business, some people think that no one is “really” injured. When an insurance company has to pay for a claim arising from a crime, the insurance company is injured, as are the victim and society at large. Crime undermines confidence in the social order and public safety. No crime is victimless.
In general, a crime requires someone to (1) commit a criminal act, known as actus reus, and (2) possess the required criminal state of mind, or mens rea. Therefore, intent to commit a crime, without more, is not enough to convict someone. For example, if an accountant thinks about stealing money from her company but does not take any steps to do it, then no crime has been committed. Similarly, if an accountant makes a mistake and transfers money inappropriately between accounts, he has not committed fraud unless he had the required criminal state of mind.
Strict liability crimes are an exception to the mens rea element. Strict liability crimes are acts that the legislature defines as social wrongs that do not need proof of the defendant’s intent to complete the act. For example, speeding while driving a motor vehicle, possession of child pornography, and sale of tobacco and alcohol to minors all carry criminal liability without the government needing to prove the defendant’s intent.
Criminal Law versus Civil Law
Criminal law differs from civil law in several important ways.
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Because crimes are public injuries, they are punishable by the government. It is the government’s responsibility to bring charges against criminals. In fact, private citizens may not prosecute each other for crimes. When a crime has been committed, the government collects the evidence and files charges against the defendant. When someone is charged with committing a crime, he or she is charged by the government in an indictment.
Our civil tort system allows victims to bring a civil suit against someone for injuries inflicted upon them. Indeed, criminal laws and torts often have parallel causes of action. Sometimes these claims have the same or similar names. For instance, a victim of fraud may bring a civil action for fraud and may also be a witness for the government during the criminal trial for fraud.
Burden of Proof
In a criminal case, the defendant is presumed to be innocent unless he or she is proven guilty. This presumption of innocence means that the government must prove the case against the defendant before it can impose punishment. If the government cannot prove its case, then the person charged with the crime must be acquitted. This means that the defendant will be released, and he or she may not be tried for that crime again. This important protection from double jeopardy is guaranteed by the Fifth Amendment.
The prosecution has the burden to prove its case beyond a reasonable doubt. This means that the evidence must be so compelling that no reasonable doubt exists as to the defendant’s guilt. The defendant does not have to prove anything, because the burden is on the government to prove its case. It is useful to think of the criminal standard of proof—beyond a reasonable doubt—as something like 95 percent certainty, with 5 percent doubt. Perhaps there is some doubt about the precise time of day or the victim’s exact words to the defendant. However, there is no doubt about the essential elements of the crime, such as the defendant’s identity as the perpetrator of the crime, his or her mens rea, and the actus reus.
Compare this to the standard of proof in a civil trial, which requires the plaintiff to prove the case only by a preponderance of the evidence. This means that the evidence to support the plaintiff’s civil case is greater than the evidence that does not. Preponderance of the evidence could mean 51 percent in favor of the plaintiff’s case, and 49 percent in doubt. Therefore, it is much more difficult to prosecute a criminal defendant than to bring a successful civil claim. Since a criminal action and a civil action may be brought against a defendant for the same incident, these differences in burdens of proof can result in verdicts that seem, at first glance, to contradict each other. For example, O.J. Simpson was acquitted of murder in a criminal trial because the government did not prove to the jury that he committed the crimes beyond a reasonable doubt. However, a different jury found O.J. Simpson liable for wrongful death in a subsequent civil action.
This extra burden reflects the fact that the defendant in a criminal case stands to lose much more than a defendant in a civil case. Although no one wants to lose assets in a civil case, the loss of liberty through imprisonment is a more significant loss. Therefore, more protections are given to a criminal defendant than are given to defendants in civil proceedings. Because so much is at stake in a criminal case, our Constitutional due process requirements are very high for defendants in criminal proceedings.
Due process procedures vary depending on the type of penalty that can be levied against someone. For example, in a civil case, the due process requirements might simply be notice and an opportunity to be heard. If the government intends to revoke a professional license, then the defendant might receive notice by way of a letter, and the opportunity to be heard might exist by way of written appeal. In a criminal case, however, the due process requirements are higher. For example, a criminal defendant is entitled to confront all witnesses against him or her, and to see the evidence the prosecution intends to introduce at trial. More protections must be in place because a criminal case carries the potential for the most serious penalties.
Classification of Crimes
Felonies versus Misdemeanors
Crimes are generally classified as either felonies or misdemeanors. Felonies are serious crimes punishable by a year or more in prison. These type of crimes include fraud, arson, homicide, and most other crimes that are mentioned in news headlines. Misdemeanors are less serious crimes that are often punishable by fines, probation or time served in jail pending conviction. Examples of misdemeanors include trespassing, vandalism, and failure to report for jury duty.
White-Collar Crime Versus Blue-Collar Crime
White-collar crime is a term used to describe nonviolent crimes committed by people in their professional capacity, or by organizations. These crimes are committed for financial gain, often through deception. White-collar crimes are not typical street crimes, like burglary or robbery, and they are not personal crimes, like murder or rape. White-collar criminals frequently commit their crimes on the job, in broad daylight, while sitting at a desk. For example, Bernie Madoff was sentenced to 150 years in prison for stealing $20 billion in a Ponzi scheme that had $65 billion in fabricated gains.
Blue-collar crime is a generic term used to describe crimes that are more traditional street crimes. In business, property crimes (rather than crimes against people) are a primary concern. A property crime is a crime involving damage to property, while a person crime is a crime involving injury to a person’s body. Examples of blue-collar crime that often affect businesses include shoplifting, vandalism and destruction of property