Welcome

Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Tuesday, January 19, 2010

1 - Criminal Law - Introduction to Criminal Law

INTRODUCTION TO CRIMINAL LAW

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

When most people think “lawyer,” they think criminal law (“Crimes” from now on). Crimes plays a big part in law, but it is certainly not the biggest or main part. I remember early in law school, I was amazed by such topics as torts, contracts, civil procedure and real property. Yes, I knew vaguely of the topics, but it was a bit of culture shock to launch into these topics. I had no idea that there is so much more to the topic other that death crimes and grand theft auto. In recollection, I took everything in stride, but I was so amazed. It took all I had just to pour through the material, and I had no idea how to begin to organize it.


So let’s start with the basics. In my law school today, I teach from a basic casebook and hornbook, both from Thompson/West. The casebook is “Modern Criminal law – Cases, Comments and Questions” 4th Edition, a book from American Casebook Series, by Wayne R. LaFave. The Hornbook is Criminal Law, 4th Edition, Hornbook Series, also by Wayne R. LaFave. I like them both.


The casebook starts with a few pages regarding the Criminal Justice System and the Purpose of the Criminal Law. Part One of the hornbook goes over the same material, but in a slightly different way. Even if you are not a novice, it is valuable reading. Most all of this material is generally not tested in law school, simply because of the time factor, but I have heard across the country that some law professors are doing some testing in these areas, so you should talk with your professor to see. Some of these professors will do some true/false or multiple choice tests, presumably because it forces students to do the reading and they are easy to grade. I have nothing against testing in these areas, but I begin teaching in the casebook material with information on the mental state.


Every crime is made up of a number of parts called elements and the mental state is the first. In other words, it is important to know whether or not a defendant has the appropriate mental state to be found guilty of committing a crime. I tell my student to always discuss the mental state on their answers on essay exams. For crimes, at common law, this mental state was often referred to as a “guilty” or a “bad” mind. Now, mental state is generally thought of to be the “intent” to commit a crime. Most crimes are not statutory, meaning that a state legislature (or Congress, if we were talking about a federal crime) passed a bill into law that defines and qualifies criminal conduct with respect to a particular act or series of acts. In these statutes, the intent will be prescribed. Sometimes the mental state is referred to as the “mes rea.” It is a cool term that could be used at parties to impress your friends, or maybe in the “Dictionary Game,” but it doesn’t generally impress a law professor or earn you any particular credit on a law exam. Just call it the “mental state.”


In law school, unless asked to work with a state statute or the Model Penal Code (“MPC”), a student should, with a few exceptions, discuss the common law with respect to crimes. Common law developed, generally in Rome and/or England and was brought to the colonies upon settlement. As America developed its court system, a lot of this old law was modified or completely changed by the courts. All of this is generally referred to as the common law.


There are some “strict liability” criminal laws – liability without regard to intent or fault – such as most traffic laws, like speeding. One would not be able to get out of a speeding ticket by arguing, “I didn’t think I was going that fast.” One is either driving in excess of the posted speed limit or he is not.


There are some issues regarding mistake of fact or law, but I won’t go into that here, unless someone asks.


Following the mental state, comes the “act requirement.” This is sometimes called the “actus reas” and earns the same credit as mens rea. To satisfy the act requirement, a defendant must perform some voluntary action. An act that is reflexive, like when the doctor taps just below your knee with the rubber mallet to see if your reflexes are working properly, will not qualify as being voluntary, because it is involuntary. Other than reflexive, there may be a situation that is more of a reaction to stimuli than that which would be seen as voluntary, such as when you believe someone has thrown something at you and you react by raising your hand to block it. Under most circumstances, the act of raising the hand in this manner would not be considered a voluntary act.


A voluntary act may not suffice as criminal unless the act was accompanied with the requisite causation – actual or proximate cause. Cause in fact is satisfied if the defendant’s voluntary act is the “but for” cause of the offense to the victim. So if I swing my fist at you, intending to hit you, and I succeed, you would not have been hit “but for’” the fact that I swung my fist at you. On the other hand, if two people swing their fists at you at the same time and both strike you at the same time, the law in most cases deems both acts as the “but for” cause.


Proximate or legal cause is generally one of foreseeability or that which is fairly attributable to the injury. If my act intended one result and the actual result so deviated from that so as to be extraordinary (beyond the realm of foreseeability), my act would not be the proximate cause of the result.


We’ll talk more about this when we get to the crime of murder. For now, just remember the concepts.


Next we’ll start with the crime of murder.


Professor Doug Holden
© 2010 Douglas S. Holden. All Rights Reserved.

2 comments:

  1. Dear Prof Holden,
    The suspense is killing me. You said we would next talk about the crime of murder...

    MariaMald
    23 Feb 2010

    ReplyDelete
  2. Sorry. My habit is to post each IL course sequentially. Crimes would come up each third business day.

    Professor Holden

    ReplyDelete