Criminal Law

What is Criminal law?

Criminal law (also known as penal law) is the body of law that punishes criminals for committing offences against the state. The goal of this process is that of achieving criminal justice.

According to criminal law, crimes are offences against the social order. In common law jurisdictions, there is a legal fiction that crimes disturb the peace of the sovereign. Government officials, as agents of the sovereign, are responsible for the prosecution of offenders. Hence, the criminal law "plaintiff" is the sovereign, which in practical terms translates into the monarch or the people.

The major objective of criminal law is deterrence and punishment, while that of civil law is individual compensation. Criminal offences consist of two distinct elements; the physical act (the actus reus, guilty act) and the requisite mental state with which the act is done (the mens rea, guilty mind). For example, in murder the 'actus reus is the unlawful killing of a person, while the 'mens rea is malice aforethought (the intention to kill or cause grievous injury). The criminal law also details the defenses that defendants may bring to lessen or negate their liability (criminal responsibility) and specifies the punishment which may be inflicted. Criminal law neither requires a victim, nor a victim's consent, to prosecute an offender. Furthermore, a criminal prosecution can occur over the objections of the victim and the consent of the victim is not a defense in most crimes.

Criminal law in most jurisdictions both in the common and civil law traditions is divided into two fields:

* Criminal procedure regulates the process for addressing violations of criminal law

* Substantive criminal law details the definition of, and punishments for, various crimes.

Criminal law distinguishes crimes from civil wrongs such as tort or breach of contract. Criminal law has been seen as a system of regulating the behavior of individuals and groups in relation to societal norms at large whereas civil law is aimed primarily at the relationship between private individuals and their rights and obligations under the law. Although many ancient legal systems did not clearly define a distinction between criminal and civil law, in England there was little difference until the codification of criminal law occurred in the late nineteenth century. In most U.S. law schools, the basic course in criminal law is based upon the English common criminal law of 1750 (with some minor American modifications like the clarification of mens rea in the Model Penal Code).

The Criminal case procedure.

In a criminal case, the government generally brings charges in one of two ways: either by accusing a suspect directly in a "bill of information" or other similar document, or by bringing evidence before a grand jury to allow that body to determine whether the case should proceed. If there is, then the defendant is indicted. In the federal system, a case must be brought before a grand jury for indictment if it is to proceed; some states, however, do not require indictment. Once charges have been brought, the case is then brought before a petit jury, or is tried by a judge if the defense requests it. The jury is selected from a pool by the prosecution and defense.

The burden of proof is on the prosecution in a criminal trial, which must prove beyond a reasonable doubt that the defendant is guilty of the crime charged. The prosecution presents its case first, and may call witnesses and present other evidence against the defendant. After the prosecution rests, the defense may move to dismiss the case if there is insufficient evidence, or present its case and call witnesses. All witnesses may be cross-examined by the opposing side. The defendant is not required to testify under the Fifth Amendment to the United States Constitution, but must answer the prosecution's questions if he or she takes the stand. After both sides have presented their cases and made closing arguments, the judge gives the jury legal instructions and they adjourn to deliberate in private. The jury must unanimously agree on a verdict of guilty or not guilty.

If a defendant is found guilty, sentencing follows, often at a separate hearing after the prosecution, defense, and court have developed information based on which the judge will craft a sentence. In capital cases, a separate "penalty phase" occurs, in which the jury determines whether to recommend that the death penalty should be imposed. As with the guilt phase, the burden is on the prosecution to prove its case, and the defendant is entitled to take the stand in his or her own defense, and may call witnesses and present evidence.

After sentencing, the defendant may appeal the ruling to a higher court. American appellate courts do not retry the case; they only examine the record of the proceedings in the lower court to determine if errors were made that require a new trial, resentencing, or a complete discharge of the defendant, as is mandated by the circumstances. The prosecution may not appeal after an acquittal, although it may appeal under limited circumstances before verdict is rendered, and may also appeal from the sentence itself.

Civil and Common law.

Differences between civil law and common law systems

* The majority of civil law jurisdictions follow an inquisitorial system of adjudication, in which judges undertake an active investigation of the claims by examining the evidence and preparing reports.

* In common law systems, the trial judge, the investigators, and the prosecution are separate functions. After an investigation has been completed and charges lodged, the trial judge presides over proceedings grounded in the adversarial system of dispute resolution, where both the prosecution and the defense prepare arguments to be presented before the court. Some civil law systems have adopted adversarial procedures.

Proponents of each system tend to consider that their system defends best the rights of the innocent. There is a tendency in common law countries to believe that civil law / inquisitorial systems do not have the so-called "presumption of innocence", and do not provide the defense with adequate rights. Conversely, there is a tendency in countries with an inquisitorial system to believe that accusatorial proceedings unduly favor rich defendants who can afford large legal teams, and are very harsh on poorer defendants.

Basic rights.

Currently, in all countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty, as opposed to having the defendant prove that he is innocent; any doubt is resolved in favor of the defendant. This provision, known as the presumption of innocence, may in practice operate somewhat differently in different countries.

Similarly, all such jurisdictions allow the defendant the right of a counsel and provide defendants that cannot afford to have their own lawyer some lawyer at the public expense (which is in some countries called a "court-appointed lawyer"). Again, the efficiency of this system depends greatly on the jurisdictions. In some jurisdictions, the lawyers provided to indigent defendants are often overworked or incompetent, or may not take much interest in the cases they have to defend.

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