There are two general types of law practiced in the United States—criminal and civil. Criminal law is a formal means of social control that involves the use of rules that are interpreted, and are enforceable, by the courts of a political community. The violation of a criminal law is a crime and is considered an offense against the state. Civil law is a means of resolving conflicts between individuals. The violation of a civil law is a tort—an injury, damage, or wrongful act—and is considered a private matter between individuals.
Distinguish between substantive law and procedural law.
There are two types of criminal law—substantive and procedural. Substantive law defines criminal offenses and their penalties. Procedural law specifies the ways in which substantive laws are administered. Procedural law is concerned with due process of law—the rights of people suspected of or charged with crimes.
List five features of "good" criminal laws.
Ideally, "good" criminal laws should possess five features: (1) politicality, (2) specificity, (3) regularity, (4) uniformity, and (5) penal sanction.
Explain why criminal law is a political phenomenon.
Criminal law is the result of a political process in which rules are created by human beings to prohibit or regulate the behavior of other human beings. Nothing is criminal in and of itself; only the response of the state makes it so.
Summarize the origins of American Criminal Law.
The criminal law of the United States is, for the most part, derived from the laws of England and is the product of constitutions and legislative bodies, common law, and, if provided for by statute, some administrative or regulatory agency rules and decisions.
Describe the procedural rights in the Fourth Amendment.
The Fourth Amendment protects persons from unreasonable searches and seizures (including arrests). Under most circumstances, it requires that a judge issue a search warrant authorizing law officers to search for and seize evidence of criminal activity, but the warrant can be issued only when there is probable cause. In 1914, the Supreme Court adopted the exclusionary rule, which barred evidence seized illegally from being used in a criminal trial; in 1961, the rule was made applicable to the states. Subsequent Supreme Court decisions have narrowed the application of the exclusionary rule. The Fourth Amendment also protects persons from warrantless searches and seizures in places where they have a legitimate right to expect privacy. The protection, however, does not extend to every place where a person has a legitimate right to be. The Court has permitted stopping and searching an automobile when there is probable cause to believe the car is carrying something illegal.
Describe the procedural rights in the Fifth Amendment.
The Fifth Amendment provides many procedural protections, the most important of which is the protection against compelled self-incrimination. This protection was extended to most police custodial interrogations in the 1966 case of Miranda v. Arizona. According to Miranda, police custody is threatening and confessions obtained during custody can be admitted into evidence only if suspects have been (1) advised of their constitutional right to remain silent, (2) warned that what they say can be used against them in a trial, (3) informed of the right to have an attorney, and (4) told that if they cannot afford an attorney, one will be appointed for them prior to questioning, if they so desire. Suspects may waive their Miranda rights, but only if the waiver is made knowingly, intelligently, and voluntarily. Other due process rights in the Fifth Amendment are the right to a grand jury indictment in felony cases (in federal court) and protection against double jeopardy.
Describe the procedural rights in the Sixth Amendment.
Many due process rights are provided by the Sixth Amendment: the right to a speedy and public trial, the right to an impartial jury of the state and district where the crime occurred, the right to be informed of the nature and cause of the accusation, the right to confront opposing witnesses, the right to compulsory process for obtaining favorable witnesses, and the right to counsel. In the 1963 case of Gideon v. Wainwright, the Supreme Court extended the right to court-appointed counsel to any poor state defendant charged with a felony.
Describe the procedural rights in the Eighth Amendment.
The Eighth Amendment protects against "cruel and unusual punishments." The Supreme Court has rarely ruled on this provision, generally approving a punishment as long as it has been enacted by a legislature, it has been imposed by a judge or jury, and the Court determines that (1) it is not grossly disproportionate to the magnitude of the crime, (2) it has been imposed for the same offense in other jurisdictions, and (3) it has been imposed for other offenses in the same jurisdiction. The Eighth Amendment also protects against excessive bail and fines, but those protections have not been made binding on state courts.
Explain why procedural rights are important to those accused of crimes.
The primary reason for procedural rights is to protect innocent people, as much as possible, from being arrested, charged, convicted, or punished for crimes they did not commit. However, even with the most highly developed system of procedural, or due process, rights in the world, criminal defendants in the United States still face miscarriages of justice.
