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Criminal Law
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Criminal Law
A body of rules and statutes that defines conduct prohibited by the government b
ecause it threatens and harms public safety and welfare and that establishes pun
ishment to be imposed for the commission of such acts.
The term criminal law generally refers to substantive criminal laws. Substantive
criminal laws define crimes and may establish punishments. In contrast, Crimina
l Procedure describes the process through which the criminal laws are enforced.
For example, the law prohibiting murder is a substantive criminal law. The manne
r in which government enforces this substantive law through the gathering of evide
nce and prosecution is generally considered a procedural matter.
Crimes are usually categorized as felonies or misdemeanors based on their nature
and the maximum punishment that can be imposed. A felony involves serious misco
nduct that is punishable by death or by imprisonment for more than one year. Mos
t state criminal laws subdivide felonies into different classes with varying deg
rees of punishment. Crimes that do not amount to felonies are misdemeanors or vi
olations. A misdemeanor is misconduct for which the law prescribes punishment of
no more than one year in prison. Lesser offenses, such as traffic and parking i
nfractions, are often called violations and are considered a part of criminal la
w.
The power to make certain conduct illegal is granted to Congress by virtue of th
e Necessary and Proper Clause of the Constitution (art. I, 8, cl. 18). Congress
has the power to define and punish crimes whenever it is necessary and proper to

do so, in order to accomplish and safeguard the goals of government and of soci
ety in general. Congress has wide discretion in classifying crimes as felonies o
r misdemeanors, and it may revise the classification of crimes.
State legislatures have the exclusive and inherent power to pass a law prohibiti
ng and punishing any act, provided that the law does not contravene the provisio
ns of the U.S. or state constitution. When classifying conduct as criminal, stat
e legislatures must ensure that the classification bears some reasonable relatio
n to the welfare and safety of society. Municipalities may make designated behav
ior illegal insofar as the power to do so has been delegated to them by the stat
e legislature.
Laws passed by Congress or a state must define crimes with certainty. A citizen
and the courts must have a clear understanding of a criminal law's requirements
and prohibitions. The elements of a criminal law must be stated explicitly, and
the statute must embody some reasonably discoverable standards of guilt. If the
language of a statute does not plainly show what the legislature intended to pro
hibit and punish, the statute may be declared void for vagueness.
In deciding whether a statute is sufficiently certain and plain, the court must
evaluate it from the standpoint of a person of ordinary intelligence who might b
e subject to its terms. A statute that fails to give such a person fair notice t
hat the particular conduct is forbidden is indefinite and therefore void. Courts
will not hold a person criminally responsible for conduct that could not reason
ably be understood to be illegal. However, mere difficulty in understanding the
meaning of the words used, or the Ambiguity of certain language, will not nullif
y a statute for vagueness.
A criminal statute does not lapse by failure of authorities to prosecute violati
ons of it. If a statute is expressly repealed by the legislature, but some of it
s provisions are at the same time re-enacted, the re-enacted provisions continue
in force without interruption. If a penal statute is repealed without a saving
clause, which would provide that the statute continues in effect for crimes that
were committed prior to its repeal, violations committed prior to its repeal ca
nnot be prosecuted or punished after its repeal.
The same principles govern pending criminal proceedings. The punishment that is
provided under a repealed statute without a saving clause cannot be enforced, no
r can the proceeding be prosecuted further, even if the accused pleads guilty. A
court cannot inflict punishment under a statute that no longer exists. If a rel
evant statute is repealed while an appeal of a conviction is pending, the convic
tion must be set aside if there is no saving clause. However, once a final judgm
ent of conviction is handed down on appeal, a subsequent repeal of the statute u
pon which the conviction is based does not require reversal of the judgment.
Generally, two elements are required in order to find a person guilty of a crime
: an overt criminal act and criminal intent. The requirement of an Overt Act is
fulfilled when the defendant purposely, knowingly, or recklessly does something
prohibited by law. An act is purposeful when a person holds a conscious objectiv
e to engage in certain conduct or to cause a particular result. To act knowingly
means to do so voluntarily and deliberately, and not owing to mistake or some o
ther innocent reason. An act is reckless when a person knows of an unjustifiable
risk and consciously disregards it.
An omission, or failure to act, may constitute a criminal act if there is a duty
to act. For example, a parent has a duty to protect his or her child from harm.
A parent's failure to take reasonable steps to protect a child could result in
criminal charges if the omission were considered to be at least reckless.
Ordinarily, a person cannot be convicted of a crime unless he or she is aware of
all the facts that make his or her conduct criminal. However, if a person fails
to be aware of a substantial and unjustifiable risk, an act or omission involvi
ng that risk may constitute negligent conduct that leads to criminal charges. Ne
gligence gives rise to criminal charges only if the defendant took a very unreas
onable risk by acting or failing to act.
Intent
Criminal intent must be formed before the act, and it must unite with the act. I
t need not exist for any given length of time before the act; the intent and the

act can be as instantaneous as simultaneous or successive thoughts.

A jury may be permitted to infer criminal intent from facts that would lead a re
asonable person to believe that it existed. For example, the intent to commit Bu
rglary may be inferred from the accused's possession of tools for picking locks.
Criminal intent may also be presumed from the commission of the act. That is, th
e prosecution may rely on the presumption that a person intends the Natural and
Probable Consequences of his or her voluntary acts. For example, the intent to c
ommit murder may be demonstrated by the particular voluntary movement that cause
d the death, such as the pointing and shooting of a firearm. A defendant may reb
ut this presumption by introducing evidence showing a lack of criminal intent. I
n the preceding example, if the murder defendant reasonably believed that the fi
rearm was actually a toy, evidence showing that belief might rebut the presumpti
on that death was intended.
Proof of general criminal intent is required for the conviction of most crimes.
The intent element is usually fulfilled if the defendant was generally aware tha
t he or she was very likely committing a crime. This means that the prosecution
need not prove that the defendant was aware of all of the elements constituting
the crime. For example, in a prosecution for the possession of more than a certa
in amount of a controlled substance, it is not necessary to prove that the defen
dant knew the precise quantity. Other examples of general-intent crimes are Batt
ery, rape, Kidnapping, and False Imprisonment.
Some crimes require a Specific Intent. Where specific intent is an element of a
crime, it must be proved by the prosecution as an independent fact. For example,
Robbery is the taking of property from another's presence by force or threat of
force. The intent element is fulfilled only by evidence showing that the defend
ant specifically intended to steal the property. Unlike general intent, specific
intent may not be inferred from the commission of the unlawful act. Examples of
specific-intent crimes are solicitation, attempt, conspiracy, first-degree prem
editated murder, assault, Larceny, robbery, burglary, forgery, false pretense, a
nd Embezzlement.
Most criminal laws require that the specified crime be committed with knowledge
of the act's criminality and with criminal intent. However, some statutes make a
n act criminal regardless of intent. When a statute is silent as to intent, know
ledge of criminality and criminal intent need not be proved. Such statutes are c
alled Strict Liability laws. Examples are laws forbidding the sale of alcohol to
minors, and Statutory Rape laws.
The doctrine of transferred intent is another nuance of criminal intent. Transfe
rred intent occurs where one intends the harm that is actually caused, but the i
njury occurs to a different victim or object. To illustrate, the law allows pros
ecution where the defendant intends to burn one house but actually burns another
instead. The concept of transferred intent applies to Homicide, battery, and Ar
son.
Felony-murder statutes evince a special brand of transferred intent. Under a fel
ony-murder statute, any death caused in the commission of, or in an attempt to c
ommit, a predicate felony is murder. It is not necessary to prove that the defen
dant intended to kill the victim. For example, a death resulting from arson will
give rise to a murder charge even though the defendant intentionally set the st
ructure on fire without intending to kill a human being. Furthermore, the underl
ying crime need not have been the direct cause of the death. In the arson exampl
e, the victim need not die of burns; a fatal heart attack will trigger a charge
of felony murder. In most jurisdictions, a death resulting from the perpetration
of certain felonies will constitute first-degree murder. Such felonies usually
include arson, robbery, burglary, rape, and kidnapping.
Malice
Malice is a state of mind that compels a person to deliberately cause unjustifia
ble injury to another person. At Common Law, murder was the unlawful killing of
one human being by another with malice aforethought, or a predetermination to ki
ll without legal justification or excuse. Most jurisdictions have omitted malice
from statutes, in favor of less-nebulous terms to describe intent, such as purp
ose and knowing.

Massachusetts, for example, has retained malice as an element in criminal prosec

utions. Under the General Laws of the Commonwealth of Massachusetts, Chapter 265
, Section 1, malice is an essential element of first- and second-degree murder.
According to the Supreme Judicial Court of Massachusetts malice is a mental stat
e that "includes any unexcused intent to kill, to do grievous bodily harm, or to
do an act creating a plain and strong likelihood that death or grievous harm wi
ll follow" (Commonwealth v. Huot, 403 N.E.2d 411 [1980]).
Motives
Motives are the causes or reasons that induce a person to form the intent to com
mit a crime. They are not the same as intent. Rather, they explains why the pers
on acted to violate the law. For example, knowledge that one will receive insura
nce funds upon the death of another may be a motive for murder, and sudden finan
cial difficulty may be motive for embezzlement or burglary.
Proof of a motive is not required for the conviction of a crime. The existence o
f a motive is immaterial to the matter of guilt when that guilt is clearly estab
lished. However, when guilt is not clearly established, the presence of a motive
might help to establish it. If a prosecution is based entirely on Circumstantia
l Evidence, the presence of a motive might be persuasive in establishing guilt;
likewise, the absence of a motive might support a finding of innocence.
Defenses
Defenses Negating Criminal Capacity To be held responsible for a crime, a person
must understand the nature and consequences of his or her unlawful conduct. Und
er certain circumstances, a person who commits a crime lacks the legal capacity
to be held responsible for the act.Examples of legal incapacity are infancy, inc
ompetence, and intoxication.
Children are not criminally responsible for their actions until they are old eno
ugh to understand the difference between right and wrong and the nature of their
actions. Children under the age of seven are conclusively presumed to lack the
capacity to commit a crime. Between the ages of seven and 14, children are presu
med to be incapable of committing a crime. However, this presumption is not conc
lusive; it can be rebutted by the prosecution through the admission of evidence
that the child knew that what he or she was doing was wrong. Anyone over the age
of 14 is presumed to be capable of committing a crime, but this presumption can
be rebutted by proof of either mental or physical incapacity.
Should More Crimes Be Made Federal Offenses?
Enforcement of criminal laws in the United States has traditionally been a matte
r handled by the states. The federal government, conversely, has typically limit
ed itself to policing only crimes against the federal government and interstate
crime. This is just one expression of the U.S. system of Federalism, the notion
that the federal government exists in tandem with the states and does not, witho
ut necessity, deprive states of their powers. The Tenth Amendment to the U.S. Co
nstitution is an example of federalism at work. That amendment states, "The powe
rs not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people."
Near the end of the twentieth century, however, Congress passed a host of federa
l laws that directly overlap with existing state criminal laws. Such laws includ
e the Anti-Car Theft Act of 1992, the Child Support Recovery Act of 1992, the An
imal Enterprise Protection Act of 1992, and new criminal laws on Arson, narcotic
s and dangerous drugs, guns, Money Laundering and reporting, Domestic Violence,
environmental transgressions, career criminals, and repeat offenders. As a resul
t, in 1998, the number of criminal prosecutions in federal courts increased by 1
5 percent. The increase was nearly three times the increase in federal criminal
prosecutions in 1997.
In a Report of the Federal Judiciary issued at the end of 1998, U.S. Supreme Cou
rt Chief Justice william h. rehnquist criticized the congressional movement towa
rd federalizing the criminal justice system. "Federal courts were not created to
adjudicate local crimes," Rehnquist instructed, "no matter how sensational or h
einous the crimes may be." Rehnquist noted the tremendous toll that federalizati
on of crime was exacting on the federal judiciary, and he decried the damage it
was doing to the concept of federalism: "The trend to federalize crimes that tra

ditionally have been handled in state courts not only is taxing the judiciary's
resources and affecting its budget needs, but it also threatens to change entire
ly the nature of our federal system." According to Rehnquist, the problem was po
litical in nature; senators and representatives in Congress were using the act o
f lawmaking to win or keep their seats: "The pressure in Congress to appear resp
onsive to every highly publicized societal ill or sensational crime needs to be
balanced with an inquiry into whether states are doing an adequate job in this p
articular area and, ultimately, whether we want most of our legal relationships
decided at the national rather than local level."
In his 1998 report, Rehnquist cited a report on federal courts issued by the 199
5 Judicial Conference of the United States. The Judicial Conference recommended
that federal courts be used for only five types of cases: 1) offenses against th
e government or its inherent interests; 2) criminal activity with substantial mu
lti-state or international aspects; 3) criminal activity involving complex comme
rcial or institutional enterprises most effectively prosecuted under federal res
ources or expertise; 4) serious high level or widespread state or local governme
nt corruption; and 5) criminal cases raising highly sensitive local issues. "Alt
hough Congress need not follow the recommendations of the Judicial Conference,"
Rehnquist wrote, "this Long-Range Plan is based not simply on the preference of
federal judges, but on the traditional principle of federalism that has guided t
he country throughout its existence."
Concern over the federalization trend spread during the late 1990s. The Criminal
Justice Section of the American Bar Association (ABA) organized a task force the
Task Force on the Federalization of Criminal Law to look into the matter. In 1998,
the task force issued a report in which it criticized the trend. Victor S. (Tor
ry) Johnson, a representative of the National District Attorneys Association (ND
AA) on the task force, declared in Prosecutor, "By trying to fight street crime
through federal legislation, Congress misleads the public into believing that a
national response will be effective and that the problem will be solved with fed
eral intervention." Congress then fails to provide enough federal funding to pro
secute all the new laws, creating a situation in which the efforts of local law
enforcement "are undermined by the unrealistic expectations created by Congress'
well-publicized enactments."
In his 1999 article for Corrections Today, James A. Gondles Jr., executive direc
tor of the American Correctional Association, lamented the introduction of low-l
evel, local criminals into the federal system. According to Gondles, mixing such
prisoners with big-time federal criminals blurs the jurisdictional line and mak
es it "more difficult for those at the state and local levels to do their jobs."
Not everyone is troubled by the federalization of criminal law enforcement. Prop
onents of federal criminal laws argue that they are necessary in an increasingly
mobile society. Crime tends to span more than one state and even local crime ca
n have effects which cross state boundaries. In his article for the Hastings Law
Journal, Rory K. Little, a professor of law at the University of California, Ha
stings College of Law, defended the increase in federal crimes as a protection a
gainst the inability of states to catch and prosecute all criminals. If the qual
ity of justice is better in the federal courts, Little opines, "then problems of
crime cannot be ignored federally while state criminal justice systems slowly s
ink and justice fails."
A U.S. Supreme Court decision in March 1999 constituted an approval of increased
federal authority over crime. In United States v. Rodriguez-Moreno, 526 U.S. 27
5, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), Jacinto Rodriguez-Moreno kidnapped a
drug associate and took him from Texas to New Jersey, then to New York, and fina
lly to Maryland. Rodriguez-Moreno was charged with, among other crimes, kidnappi
ng and using and carrying a firearm in relation to a kidnapping, an act that vio
lated 18 U.S.C.A. 924(c)(1). Section 924(c)(1) makes it a crime to use or carry
a firearm during, and in relation to, any crime of violence. Rodriguez-Moreno wa
s tried in New Jersey on the charges, even though he did not have a gun in New J
ersey.
Rodriguez-Moreno, who did not want to be tried in New Jersey, argued that the st
atute did not allow the federal government to prosecute him for the 924 crime in

New Jersey because he did not commit the crime in that state. The Court rejecte
d the argument, holding that because the crime of violence (kidnapping) continue
d through several states, prosecution was proper in any district where the crime
of violence was committed, even if the firearm was used or carried in only one
state. The decision made it easier for federal prosecutors to pick and choose th
e venues for their cases.
Further readings
"Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes."
1999. Prosecutor (March/April).
"Federalization of Crimes: NDAA's Representative Reports on ABA's Federalization
Task Force." 1999. Prosecutor (March/April).
Gondles, James A. 1999. "The Federalization of Criminal Justice." Corrections To
day (April).
Little, Rory K. 1995. "Myths and Principles of Federalization." Hastings Law Jou
rnal (April).
Cross-references
Federal Courts; State Courts; States' Rights.
All states have juvenile courts, which are separate from criminal courts. Juveni
les who are accused of a crime are tried in these courts as delinquent children,
rather than as criminal defendants. This alternative prevents children from inv
oking the defense of infancy. In juvenile courts, criminal charges lead to an ad
judication rather than prosecution, because the aim of juvenile courts is to reh
abilitate, rather than to punish. In the 1990s, some state legislatures passed l
aws to make it easier to prosecute juveniles in adult courts, especially in case
s involving violent crimes.Insane persons cannot, in a legal sense, form the int
ent necessary to commit a crime. They are not, therefore, criminally responsible
for their actions. Courts have applied a variety of legal tests to determine th
e mental state of a criminal defendant who claims that he or she was insane at t
he time of the alleged crime. One test is the M'Naghten Rule, which was original
ly used by an English court in the criminal prosecution of Daniel M'Naghten.
M'Naghten had an insane delusion that the prime minister of England, Sir Robert
Peel, was trying to kill him. Mistaking the prime minister's secretary, Edward D
rummond, for the prime minister, M'Naghten killed the secretary. At his trial, M
'Naghten asserted that he had been insane when he committed the crime. The jury
accepted his argument and acquitted him. From that decision evolved the M'Naghte
n test, under which, in order to disclaim criminal responsibility, a defendant m
ust be affected by a disease of the mind at the time he or she commits the act.
The disease must cause the ability to reason to become so defective that the per
son does not know the nature and quality of the act or else does not know that t
he act is wrong. A successful invocation of the M'Naghten defense results in com
mitment to a mental institution for treatment, rather than imprisonment.A number
of states prefer the "irresistible impulse" test as the standard for determinin
g the sanity of a criminal defendant. If the defendant is suffering from a menta
l disease that prevents control of personal conduct, he or she may be adjudged n
ot guilty by reason of insanity, even if he or she knows the difference between
right and wrong.
The Model Penal Code of the American Law Institute established another test of i
nsanity that has been adopted by almost all of the federal courts and by numerou
s state legislatures. Under the Model Penal Code test, a person is not responsib
le for criminal conduct if, at the time of such conduct, he or she lacks the cap
acity either to appreciate the criminality or the wrongfulness of the conduct, o
r to conform his or her conduct to the requirement of law. This lack-of-capacity
excuse does not apply to abnormalities demonstrated by a repetitive pattern of
illegal or violent acts.
Some states employ the "lack-of-substantial-capacity" test. The phrase "lacks su
bstantial capacity" is a qualification of the M'Naghten rule and the irresistibl
e-impulse test, both of which require the total absence of capacity. This test a
lso requires a showing of causality. The defense is not established merely by a
showing of a mental disease; rather, it is established only if, as a result of t
he disease, the defendant lacks the substantial capacity that is required in ord

er to hold him or her criminally responsible. For example, pyromania may be a de

fense to a charge of arson, but it is no defense to a charge of larceny. An Irre
sistible Impulse arising from anger, jealousy, or a desire for revenge does not
excuse a defendant from criminal responsibility unless such emotions are part of
the mental disease that caused the crime.
Generally, voluntary intoxication from drugs or alcohol does not excuse a crimin
al act. Involuntary intoxication is, however, a valid defense. It occurs when a
person is forced to take an intoxicating substance against his or her will, or d
oes so by mistake. If a defendant's involuntary intoxicated condition causes a c
riminal act, the defendant will not be convicted if, because of the intoxication
, he or she is unable to appreciate the criminality of the conduct.
Fair Warning Defense The due process Clauses contained in the Fifth and Fourteen
th Amendments to the U.S. Constitution require that before a defendant may be pr
osecuted for criminal conduct, the law must make clear which conduct is criminal
. Justice Oliver Wendell Holmes articulated the standard when he wrote that a cr
iminal statute must give "fair warning
in language that the common world will un
derstand, of what the law intends to do if a certain line is passed. To make the
warning fair, so far as possible the line should be clear." McBoyle v. United S
tates, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L. Ed. 816 (1931)."
The U.S. Supreme Court had the opportunity to revisit the fair-warning requireme
nt in United States. v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 137 L. Ed. 2d 432
(1997). Lanier was a case involving a prosecution under 18 U.S.C.A. 242, a Reco
nstruction-era Civil Rights law that makes it a federal crime to deprive another
of "any rights, privileges, or immunities secured or protected by the constitut
ion or laws of the United States" while acting "under color of any law."
Congress originally passed the law to afford a federal right in federal courts f
or situations when, by reason of prejudice, passion, neglect, intolerance, or ot
herwise, state courts might not be as vigilant as federal courts in protecting t
he rights that are guaranteed by the Fourteenth Amendment to the U.S. Constituti
on.
Traditionally, Section 242 had been primarily invoked against police officers an
d prison guards. The Lanier case arose from allegations of sexual misconduct aga
inst the sole state Chancery Court judge for two rural counties in western Tenne
ssee, David Lanier. The trial record shows that from 1989 to 1991, while Lanier
was in office, he sexually assaulted several women in his judicial chambers.
Lanier's most serious assault involved a woman whose Divorce proceedings had com
e before his chancery court and whose daughter's custody remained subject to his
jurisdiction. When the woman applied for a secretarial job at Lanier's courthou
se, Lanier interviewed her. As the woman got up to leave, Lanier grabbed her, se
xually assaulted her, and finally committed oral rape.
On five other occasions Lanier sexually assaulted four other women: two of his s
ecretaries, a Youth Services officer, and a local coordinator for a federal prog
ram who had been in Lanier's chambers to discuss a matter affecting the same cou
rt.
Lanier was later charged with 11 violations of Section 242. Each count of the in
dictment alleged that Lanier, acting willfully and under color of Tennessee law,
had deprived the victims of the right to be free from willful sexual assault. B
efore trial, Lanier moved to dismiss the indictment on the ground that Section 2
42 is void for vagueness. The district court denied the motion.
The jury returned verdicts of guilty on seven counts, and not guilty on three (o
ne count having been dismissed at the close of the prosecution's case). Lanier w
as then sentenced to consecutive maximum terms totaling 25 years.
A panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the convicti
ons and sentence, United States v. Lanier, 33 F.3d 639 (6th Cir. 1994), but the
full court vacated that decision and granted a rehearing en banc. United States.
v. Lanier, 43 F.3d 1033 (1995). On rehearing, the full court set aside Lanier's
convictions for "lack of any notice that this ambiguous criminal statute [i.e.,
Section 242] includes simple or sexual assault crimes within its coverage." Uni
ted States v. Lanier, 73 F.3d 1380 (6th Cir. 1996).
Specifically, the Sixth Circuit held that criminal liability may be imposed unde

r Section 242 only if the constitutional right said to have been violated is fir
st identified in a decision of the U.S. Supreme Court (not any other federal or
state court), and only when that right has been held to apply in "a factual situ
ation fundamentally similar to the one at bar."
The Sixth Circuit then said it could not find any decision of the U.S. Supreme C
ourt that recognized, under Section 242, a right to be free from unjustified ass
ault or invasions of bodily integrity in a situation "fundamentally similar" to
those circumstances under which Lanier was charged.
In the absence of such a decision, the Sixth Circuit said that Tennessee had vio
lated Lanier's due process right to be fairly warned that particular conduct is
prohibited and carries with it the possibility for criminal punishment. Accordin
gly, the Sixth Circuit reversed the judgment of conviction and instructed the tr
ial court to dismiss the indictment.
The state of Tennessee appealed, and the U.S. Supreme Court reversed the Sixth C
ircuit, observing that there are three manifestations of the "fair warning requi
rement." First, the "vagueness doctrine" bars enforcement of statutes that eithe
r forbid or require an act in terms that are so vague that men of common intelli
gence must necessarily guess at their meaning and differ as to their application
. Second, the Court wrote that the "canon of Strict Construction of criminal sta
tutes" ensures fair warning by limiting application of ambiguous criminal statut
es to conduct that is clearly covered. Third, due process bars courts from apply
ing a novel construction of a criminal statute to conduct that neither the statu
te nor any prior judicial decision has fairly disclosed to be within its scope.
In other words, a trial court cannot "clarify" a statute by supplying terms thro
ugh its own interpretation of the law, when those terms were not clearly contemp
lated by the statutory language chosen by the legislature.
However, the Court emphasized that the due process fair-warning requirement does
not require that prohibited criminal conduct be previously identified by one of
its own decisions and held to apply in a factual situation "fundamentally simil
ar" to the defendant's case at bar. Instead, the Court wrote, "all that can usef
ully be said about criminal liability under [Section 242] is that [liability] ma
y be imposed for deprivation of constitutional right if, but only if, in light o
f preexisting law, unlawfulness under the constitution is apparent."
The Court then remanded the case to the Sixth Circuit for further proceedings in
light of its opinion. After reading the high court's opinion, the Sixth Circuit
vacated its earlier decision and ordered Lanier to begin serving his sentence.
One Sixth Circuit judge dissented, criticizing the U.S. Supreme Court for not wr
iting a clearer opinion that articulated what constituted "apparent" unlawful co
nduct.
Exculpatory Defenses Exculpatory defenses are factors that excuse a competent pe
rson from liability for a criminal act. Duress is an exculpatory defense. One wh
o commits a crime as a result of the pressure of an unlawful threat of harm from
another person is under duress and may be excused from criminal liability. At t
rial, whether the defendant was under duress is a Question of Fact for the judge
or jury. The defense of duress was invoked in the 1976 trial of Patricia Campbe
ll Hearst, the young daughter of wealthy newspaper owners Randolph A. Hearst and
Catherine C. Hearst. On February 4, 1974, Patricia Hearst was kidnapped by the
Symbionese Liberation Army (SLA) and held for the unusual ransom of food distrib
ution to the poor. Shortly after the abduction, Hearst sent a recorded message t
o her parents, in which she announced that she had become a social revolutionary
.On April 15, Hearst participated in a bank robbery with members of the SLA. She
was arrested in September 1975 and tried for armed bank robbery. At trial, Hear
st's lawyers argued, in part, that Hearst's participation in the robbery had bee
n caused by duress. Hearst testified that she had feared for her life as she had
stood inside the Hibernia Bank. On cross-examination, Hearst invoked her Fifth
Amendment privilege against Self-Incrimination 42 times. The refusal to answer s
o many prosecution questions might have damaged Hearst's credibility, and the ju
ry did not accept her argument of duress. Hearst was convicted and sentenced to
seven years in prison. (President jimmy carter commuted her sentence on February
1, 1979, and ordered her release from prison.)

Entrapment is another exculpatory defense to criminal charges. Entrapment exists

if a law enforcement officer induces a person to commit a crime, for the purpos
e of instituting a criminal prosecution against that person. It is not available
if law enforcement merely provides material for the crime.
Mistakes of law or fact are seldom successful defenses. Generally, a Mistake of
Law is applicable only if the criminal statute was not published or made reasona
bly available prior to the act; the accused reasonably relied on the contrary te
aching of another statute or judicial decision; or, in some jurisdictions, the a
ccused reasonably relied on contrary official advice or a contrary official inte
rpretation. A Mistake of Fact may excuse a defendant if the mistake shows that t
he defendant lacked the state of mind required for the crime. For example, in a
specific-intent crime such as embezzlement, evidence that the accused was unawar
e of transfers into his or her own bank account would negate the specific crimin
al intent required for conviction.
Justification defenses include necessity, Self-Defense, defense of others, and d
efense of property. If a person acts to protect the life or health of another in
a reasonable manner and with no other reasonable choice, that person may invoke
the defense of necessity. According to the Model Penal Code, self-defense and d
efense of others are permissible when it reasonably appears necessary that force
is required to defend against an aggressor's imminent use of unlawful force. No
ndeadly force may be used in order to retain property, and Deadly Force may be u
sed only to prevent serious bodily harm.
Merger
Under common law, when a person committed a major crime that included a lesser o
ffense, the latter merged with the former. This meant that the accused could not
be charged with both crimes. The modern law of merger applies only to solicitat
ion and attempt. One who solicits another to commit a crime may not be convicted
of both the solicitation and the completed crime. Likewise, a person who attemp
ts and completes a crime may not be convicted of both the attempt and the comple
ted crime.
Attempt
An attempt to commit a crime is conduct intended to lead to the commission of th
e crime. It is more than mere preparation, but it falls short of actual commissi
on of the intended offense. An intent to commit a crime is not the same as an at
tempt to commit a crime. Intent is a mental quality that implies a purpose, wher
eas attempt implies an effort to carry that purpose or intent into execution. An
attempt goes beyond preliminary planning and involves a move toward commission
of the crime.
As a general rule, an attempt to commit a crime is a misdemeanor, whether the cr
ime itself is a felony or a misdemeanor. However, in a case of violent crime, an
attempt may be classified as a felony. Attempted murder and attempted rape are
examples of felonious attempts. In an attempt case, the prosecution must prove t
hat the defendant specifically intended to commit the attempted crime that has b
een charged. General intent will not suffice. For example, in an attempted-murde
r case, evidence must show a specific intent to kill, independent from the actua
l act, such as a note or words conveying the intent. In a murder case, intent ma
y be inferred from the killing itself.
Conspiracy
When two or more persons act together to break the law, conspiracy is an additio
nal charge to the intended crime. For example, if two persons conspire to commit
robbery, and they commit the robbery, both face two charges: conspiracy to comm
it robbery and robbery.
Further readings
Jonathan Clough, and Carmel Mulhern. 1999. Criminal Law. Sydney: Butterworths.Ka
plan, John, and Robert Weisberg. 1991. Criminal Law: Cases and Materials. 2d ed.
Boston: Little, Brown.
McMahon, Katherine E. 1993. "Murder, Malice, and Mental State: A Review of Recen
t Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Common
wealth v. Sama." Massachusetts Law Review (June).
Cross-references

Juvenile Law.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, I
nc. All rights reserved.
criminal law
n. those statutes dealing with crimes against the public and members of the publ
ic, with penalties and all the procedures connected with charging, trying, sente
ncing and imprisoning defendants convicted of crimes. (See: crime, felony, misde
meanor)
Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
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References in classic literature
?
There was a bookcase in the room; I saw, from the backs of the books, that they
were about evidence, criminal law, criminal biography, trials, acts of parliamen
t, and such things.
Great Expectations by Dickens, Charles View in context
It is for this reason that the criminal law has been in all ages more severe tha
n it would have been if the impulse to ameliorate the criminal had been what rea
lly inspired it.
The Analysis of Mind by Russell, Bertrand View in context
It is not precisely the same in any two of the States; and varies in each with e
very revision of its criminal laws.
Federalist Papers Authored by James Madison by Madison, James View in context
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