Talk:Criminal law

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[edit] mala in se vs. mala prohibita

Someone qualified the discussion in the article about mala in se vs. mala prohibita with:

Jurisdictions still recognizing common law usually [recognize mala in se vs. mala prohibita distinction]

What sense of "common law" are they referring to? And what jursidictions used to recognize common law but don't anymore? I can't think of any. -- SJK

They are referring to the common law basis of criminal law, as opposed to those jurisdictions that have replaced parts of the common law with statutory provision in various Criminal Codes. Usually the basis of most US criminal law is the common law of England circa 1750 (this is the version of criminal law they teach in most US law schools as most state jurisdictions deviate from this basis only in some respects). Alex756 21:33 16 May 2003 (UTC)
This point might be worth fitting into the article somewhere. To my knowledge criminal offences in both Canada and the US are purely statutory and have been abolished the creation of new common law offences. Common law defences, however, still remain. In contrast, England still has common law offences. Anyone know about Australia or other common law countries? -- PullUpYourSocks 23:24, 5 Jun 2005 (UTC)
Actually, there still are common law crimes in many U.S. jurisdictions - the enactment of statutes does not necessarily abolish the common law rules regarding the subject addressed by the statute. Furthermore, the statutes remain subject to interpretation under the common law, so a burglary statute which codifies part of the common law (requiring a breaking and entry with intent to commit a felony, for example, but doing away with the "in a dwelling at night" part, will still be read under common law rules of what constitutes a breaking and entry. -- BD2412 talk 12:50, July 22, 2005 (UTC)
That's very interesting. I thought england was one of the few countries still practicing Common Law offences. This, of course, is very different from the practice of common law interpretation of criminal law which is practiced in just about every common law country. In a country such as Canada the criminal code explicitly disallows new judge-made offences, however in practice, they sometimes stetch codified offences to include all sorts of crimes.

In monarchies the criminal offence may be regarded as an offence against the king or the "king's peace" or the like rather than "society as a whole." This should be mentioned. --Daniel C. Boyer

The use of the of homocide in the mens reas is muddled. To state that the act is "unlawful" killing includes the intent in the definition. (ITs in part the intent that makes it unlawful.) In addition, the definition of malice aforethought is over simplified. In short, theft might make a better example. --24.126.240.60 01:13, 12 May 2005 (UTC)

Homicide does not have to be an unlawful killing. Homicide is a killing of a person by another (s). In fact, murder is homicide without mitigation, justification or excuse.

MollyBloom 02:02, 28 May 2006 (UTC)

[edit] Criminalization

Writing totally outside my normal scope of activity, I composed criminalization. Would some of our legal minds kindly glance over this entry and see if it is sustainable? JFW | T@lk 21:59, 5 Jun 2005 (UTC)

[edit] EMBEZZELMENT

[edit] The lawyers are sanitizing these pages.

The following although partially POV perhaps, contains the valid fact that a defendant with resources must pay for his own defence. Further this directly implies a more lucrative situation for the lawyers, as the defendant is forced to pay whatever it takes to save himself. This fact and its obvious implication belong on this page:

The state pays for the prosecution, whereas the defendant must pay for his own defense. This brings a very lucrative situation to the lawyer, since the defendant will pay anything to save himself. But in almost all but the most unusual cases the resources of the state far outstrip the resources of the defendant. This helps explain why the USA has far and away more people locked away than any country on earth. LegalEagle1798 02:01, 11 January 2006 (UTC)

Please see Legal aid - FrancisTyers 17:49, 23 December 2005 (UTC)

This issue is fundumental and does not belong in legal aid anyway as that applies to indigent defendants. The fact that a defendant must pay for his own defense and is confronted by the full resources of the state is the cornerstone of criminal justice system in the USA. LegalEagle1798 02:03, 11 January 2006 (UTC)

  • The fact that anyone who can not or will not pay for an attorney will still get a public defender (also backed by the resources of the state) is the cornerstone of the justice system in the U.S., per the Supreme Court in Gideon v. Wainwright and numerous other cases that followed. Can you tell me, perchance, what proportion of criminal defendants are defended by public defenders as opposed to private attorneys? Can you tell me the average income of a private criminal defense attorney? If not, then I don't see where you have a basis for making your claims, as you seem to be mistaking underpaid criminal law practitioners with high-money rolling corporate attorneys. BD2412 T 23:40, 23 December 2005 (UTC)

Dont you see your whole statement here is irrelevant??????

The point is that the defendant, represented by a private attorney, is opposed by the vast resources of the state. This does not make for justice.

Um, so why are you attacking the lawyers when it's the state that creates this situation by throwing all those resources at criminals? The state should just let those poor criminals go, and then the lawyers would have nothing to do - is that your position? BD2412 T 00:01, 24 December 2005 (UTC)
Actually, let me rephrase that, since I almost got sucked in by your rhetorical tactic. My whole statement above is completely relevant. Your claim was that "the defendant must pay for his own defense. This brings a very lucrative situation to the lawyer, since the defendant will pay anything to save himself." Yet you have no idea what proportion of criminals are defended by the state, and no idea how much money criminal defense attorneys make (I'll give you a hint, it's less than plumbers and construction workers make). That was the point you made above, not the bit about the resources of the state that you shifted to when you found your initial claims unsupportable. You ought not puff your chest out with claims of things about which you can prove no actual knowledge. BD2412 T 00:15, 24 December 2005 (UTC)

There are exactly zero defendants defended by the state. LegalEagle1798 01:58, 11 January 2006 (UTC)

That statement is so easy to disprove that I'm not going to bother debating with you anymore:
In 1998, roughly 66 percent (two-thirds) of all federal felony defendants were represented by public defenders or other publicly funded counsel. At the county level, in 1996, 82 percent of felony defendants in the 75 most populous counties used public defenders.[1]
Note, by the way, that the "other publicly funded counsel" means regular lawyers who are required by the courts to represent criminals and paid as much as a regular public defender. Lawyers are also required by their bar associations to do plenty of pro bono work, and many represent criminal defendants for free to fulfill this obligation. I should know, I've been volunteering for over three years to help ex-felons file the paperwork to get their voting rights restored. BD2412 T 00:46, 24 December 2005 (UTC)

It is a fact that the vast resources of the state are aligned against the resources of the individual in criminal law in the USA. This implies a very lucrative situation for the lawyers as the defendant is compelled to pay anything to save himself, and it does not imply justice as the resources of the state are much greater than the resources of the individual.

Further, a defense funded by the state and actually being defended by the state are two different things entirely.

The above statement simply repeats your earlier incorrect (and now disproved) statement on the matter. BD2412 T 01:50, 24 December 2005 (UTC)

I have read and reread your words here and I fail to see how you have disproved my statement on this matter. Apparently your argument is that since lawyers that defend indigent defendants are poorly paid, poorly paid at least in relation to other lawyers, that this cannot be a lucrative situation for lawyers. You have given no evidence that lawyers that represent criminal defendants with resources are poorly paid, and the logic of the situation suggests that such lawyers make a big buck. These defendants with resources are forced to pay anything to save themselves. We know for a fact that lawyers that defend wealthy defendants make a fortune. If anything you have only proved a third implication of the main premise, the poor defendants get the worst attorneys. This is because it is against human nature for the better attorneys to take the worst paying jobs. So let me repeat my statement with your new implication.

It is a fact that the vast resources of the state are aligned against the resources of the individual in criminal law in the USA. This implies a very lucrative situation for the lawyers as the defendant is compelled to pay anything to save himself, this also implies that poor defendants will get the worst lawyers since defending indigent defendants pays less than other lawyer jobs, and it does not imply justice as the resources of the state are much greater than the resources of the individual.LegalEagle1798 20:34, 31 December 2005 (UTC)

  • Please point out to me which countries do not array their vast resources of the state against criminal defendants. I'm not sure whether you're arguing that the state should try to do a bad job prosecuting criminals, or whether criminal defendants should not have the right to choose between a state-appointed attorney or a private attorney. Also, your claim that "it is against human nature for the better attorneys to take the worst paying jobs" disregards a few important facts, including pro bono obligations (under which even the best and most highly paid attorneys represent some people for free), and the power of judges to order private attorneys to defend criminal defendants. BD2412 T 21:17, 31 December 2005 (UTC)

Inquisitorial systemLegalEagle1798 01:00, 2 January 2006 (UTC)

  • I assure you that governments using inquisitorial systems do, in fact, prosecute criminals, and that the prosecution of the criminals is carried out by the state. It is the state that brings the criminal charges, gathers and arrays the evidence against the defendant, presents it to the judge, and presses for a conviction and a lengthy sentence. The formalities may differ, but the weight of the state's authority is unchanged. BD2412 T 00:53, 9 January 2006 (UTC)
  • I would also add that the argument against the adversary system takes for granted the role of the presumption of innocence in the justice system. The state has all its resources because at every step of criminal prosecution it has a hefty burden of proving its case beyond a reasonable doubt, which, believe it or not, is a difficult task. If the state can’t prove its case, it doesn’t even matter how cheap or incompetent the defence lawyer is. A strong criminal defence typically becomes necessary only where the state has a strong case against the accused. Thus, so long as the state is doing its job properly, the likelihood of an innocent person being forced to pay huge amounts for their own defence is minimal. As for the claim about lawyers getting rich off the criminal prosecution, it is complete a myth. There is an obvious reason why a vast majority of law students choose to go into private civil practice. There is not much money is criminal law, and I am certain you’d be extremely hard pressed to find a criminal lawyer on either side who entered that career because of the money. --PullUpYourSocks 22:52, 9 January 2006 (UTC)
I don't know if I should get in the middle of this heated debate, but here it goes....The reality is a little different, at least in the US. Unfortunately, it is true that higher priced defense lawyers are more likely to get a 'not guilty' verdict for their clients. Many state budgets are such that public defenders (who are often very skilled lawyers) simply have too great a caseload to adequately defend their clients. And then, there are simply bad lawyers. I know of one young man who finally got a conviction reversed on incompetence of counsel, but that is rare - much more rare today than it used to be. The decks were stacked against this defendant. He was of Indian descent (from Trinidad), his trial was in October 2001, and the only evidence against him was one eyewitness id'd him out of 5 eyewitnesses. This should never have even got to trial, let along a conviction. He was fortunate, but still spent two years in prison for a crime he clearly did not commit. That does not mean the system doesn't work ever - of course that is not the case. However, there are some real problems that won't be resolved by continued cutting of funds for legal aid/public defenders and a 'tough on crime' mentality. MollyBloom 04:25, 25 May 2006 (UTC)

In 2004 there were 14 million people arrested in the USA according to the Federal Bureau of Investigation's annual Uniform Crime Report. There are two million people in jail in the USA. There is plenty of money in criminal law and it is silly to claim otherwise.

To the first poster here, you have missed the very important point that in inquisitorial systems it is the responsibility of the state to defend the defendant, whereas in an adversarial system such as the United States exactly zero defendants are defended by the state. To the second poster, this absurd system where the vast resources of the state are pitted against the resources of the individual cannot be made right by the caveat that one is innocent until proven guilty.

Let's start by looking at Michael Jackson case. There is no doubt that the specific charges leveled at Jackson in this case were extremely weak. The victim in this case had zero credibility. Perhaps a different case with a different victim would have had some merit, but that is completely beside the point. The specific charges made against Jackson in this case were extraordinarily weak.

This case alone with the huge publicity it generated disproves your main premise that a criminal defense typically becomes necessary only when the state has a strong case against the accused. Even if you have great celebrity and enormous resources, you must still fear that the state will prosecute you relying on a complaint with little merit. If you have ordinary resources and the state ensnares you with a complaint that lacks merit, and this can happen for a myriad of reasons, you are in serious trouble.

The OJ Simpson case shows that the state cannot be relied on to do its job properly in a criminal case in the adversarial system. At basically every stage and level of the investigation and trial in this case the state proved its incompetence. This was a case that was receiving enormous publicity and all of the players knew that their actions would receive greater scrutiny than in the run of the mill case. A strong case can be made that the incompetence and dysfunction on display in this trial merely reflected the general incompetence and dysfunction that happens day in and day out throughout the adversarial system of justice in the United States.

In the adversarial system the state abrogates all responsibility to defend those accused of crimes. The individual is left to his own resources against the vast resources of the state, and somehow this is all called justice by the caveat that the defendant must be proved guilty beyond a reasonable doubt. This all does not work in theory and in the real world it works worse. LegalEagle1798 22:04, 4 February 2006 (UTC)

[edit] Crimes Against the Government

The little organizational chart on the side of criminal law pages does not include a catigory of crimes against the Government, such as treason.

Clearly treason is a crime, yet it doesn't fit into the catigories provided (Crimes against person, property, Justice), shouldn't such a classification be added?

24.2.226.231 01:00, 26 February 2006 (UTC)

[edit] Crimes against... society?

How about drug possesion crimes? I couldn't find anything that leads me to these types of crimes either. However if you ask me, these are societies crimes against human rights.

Drug crimes are found in California's Health and Safety Codes, for example. So they're crimes against the health and safety.. of society? It should clearly be here for at least in the US significant numbers are incarcerated for drug crimes.

Uh.. -- AllegedFelon032 12:40, 14 May 2006 (UTC)

[edit] Felony Complaints

The Fifth Amendment requirement of a Grand Jury & Indictment is not binding on the states. States are not required to use grand jury indictments. State felony cases begin either through the filing of a document with the court called a Complaint or through the finding of the Indictment. I edited this section accordingly.MollyBloom 07:30, 21 May 2006 (UTC)

[edit] US-centric?

This article seems incredibly US-biased, almost as though there were no criminal law apparatus for any other country. Of course, every item on this discussion page seems pretty heavily US-focused as well... I realize that the US is the Land of Lawyers, but am I missing a more general page for non-nation-specific criminal law somewhere (i.e. one that isn't full of references to the US Constitution and criminal codes), or should this page (or complex of pages, if the rest of the Law section is similarly written) be renamed US Criminal Law and a more general page or pages produced? At the very least, if this is meant to be a general entry, giving the US stuff an explicit section in it and keeping constitutional specifics confined to that might be a good start. -- Arvedui 15:06, 12 August 2006 (UTC)

I agree. The article is so US-centric that it would be difficult to amend it to take account of the topic in general. I suggest it is renamed to Criminal Law (United States) and a new article started to cover the subject without bias. Reference could then be made to this article in the usual manner - "See main article etc...". I can't understand how articles of this calibre come to be written. Presumably the editors of this article are reasonably intelligent, and yet it's as if they don't realise there's a whole world out there, beyond the USA. Arcturus 21:56, 21 August 2006 (UTC)
this is such an appalling example that I decided to add a missing info template. Re-naming might still be the best solution, though. Harry R 14:15, 12 October 2006 (UTC)
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