Criminal Law

A body of rules and statutes that defines conduct prohibited by the government because it threate
ns and harms publicsafety and welfare and that establishes punishment to be imposed for the co
mmission of such acts.
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws de
fine crimes and mayestablish punishments. In contrast, Criminal
Procedure describes the process through which the criminal laws areenforced. For example, the
law prohibiting murder is a substantive criminal law. The manner in which government enforcest
his substantive lawthrough the gathering of evidence and prosecution
is generally considered a procedural matter.
Crimes are usually categorized as felonies or misdemeanors based on their nature and the maxim
um punishment that canbe imposed. A felony involves serious misconduct that is punishable by
death or by imprisonment for more than one year.Most state criminal laws subdivide felonies int
o different classes with varying degrees of punishment. Crimes that do notamount to felonies are
misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishm
entof no more than one year in prison. Lesser offenses, such as traffic and parking infractions, ar
e often called violations andare considered a part of criminal law.
The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and
Proper
Clause of theConstitution (art. I, 8, cl. 18). Congress has the power to define and punish crimes
whenever it is necessary and proper todo so, in order to accomplish and safeguard the goals of g
overnment and of society in general. Congress has widediscretion in classifying crimes as felonie
s or misdemeanors, and it may revise the classification of crimes.
State legislatures have the exclusive and inherent power to pass a law prohibiting and punishing
any act, provided that thelaw does not contravene the provisions of the U.S. or state constitution.
When classifying conduct as criminal, statelegislatures must ensure that the classification bears s
ome reasonable relation to the welfare and safety of society.Municipalities may make designated
behavior illegal insofar as the power to do so has been delegated to them by the statelegislature.
Laws passed by Congress or a state must define crimes with certainty. A citizen and the courts m
ust have a clearunderstanding 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 discoverab
le standards of guilt. If the language of a statute does not plainlyshow what the legislature intend
ed to prohibit 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 ofordinary intelligence who might be subject to its terms. A statute that fai
ls to give such a person fair notice that theparticular conduct is forbidden is indefinite and therefo
re void. Courts will not hold a person criminally responsible forconduct that could not reasonabl
y be understood to be illegal. However, mere difficulty in understanding the meaning of theword
s used, or the Ambiguity of certain language, will not nullify a statute for vagueness.
A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute
is expressly repealed bythe legislature, but some of its provisions are at the same time re-
enacted, the re-
enacted provisions continue in forcewithout interruption. If a penal statute is repealed without a s
aving clause, which would provide that the statute continues ineffect for crimes that were commi
tted prior to its repeal, violations committed prior to its repeal cannot be prosecuted orpunished a
fter its repeal.
The same principles govern pending criminal proceedings. The punishment that is provided unde
r a repealed statute withouta saving clause cannot be enforced, nor can the proceeding be prosecu
ted further, even if the accused pleads guilty. Acourt cannot inflict punishment under a statute th
at no longer exists. If a relevant statute is repealed while an appeal of aconviction is pending, the
conviction must be set aside if there is no saving clause. However, once a final judgment ofconvi
ction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is b
ased does notrequire 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. Therequirement of an Overt
Act is fulfilled when the defendant purposely, knowingly, or recklessly does something prohibite
d bylaw. An act is purposeful when a person holds a conscious objective to engage in certain con
duct or to cause a particularresult. To act knowingly means to do so voluntarily and deliberately,
and not owing to mistake or some other innocentreason. 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 toprotect his or her child from harm. A parent's failure to take reasonable step
s to protect a child could result in criminalcharges if the omission were considered to be at least r
eckless.
Ordinarily, a person cannot be convicted of a crime unless he or she is aware of all the facts that
make his or her conductcriminal. However, if a person fails to be aware of a substantial and unju
stifiable risk, an act or omission involving that riskmay constitute negligent conduct that leads to
criminal charges. Negligence gives rise to criminal charges only if thedefendant took a very unre
asonable risk by acting or failing to act.

Intent
Criminal intent must be formed before the act, and it must unite with the act. It need not exist for
any given length of timebefore the act; the intent and the act can be as instantaneous as simultane
ous or successive thoughts.
A jury may be permitted to infer criminal intent from facts that would lead a reasonable person t
o believe that it existed. Forexample, the intent to commit Burglary may be inferred from the ac
cused's possession of tools for picking locks.
Criminal intent may also be presumed from the commission of the act. That is, the prosecution m
ay rely on the presumptionthat a person intends the Natural and Probable
Consequences of his or her voluntary acts. For example, the intent tocommit murder may be de
monstrated by the particular voluntary movement that caused the death, such as the pointing ands
hooting of a firearm. A defendant may rebut this presumption by introducing evidence showing a
lack of criminal intent. Inthe preceding example, if the murder defendant reasonably believed th
at the firearm was actually a toy, evidence showingthat belief might rebut the presumption that d
eath was intended.
Proof of general criminal intent is required for the conviction of most crimes. The intent element
is usually fulfilled if thedefendant was generally aware that he or she was very likely committing
a crime. This means that the prosecution need notprove that the defendant was aware of all of th
e elements constituting the crime. For example, in a prosecution for thepossession of more than a
certain amount of a controlled substance, it is not necessary to prove that the defendant knewthe
precise quantity. Other examples of general-
intent crimes are Battery, 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 prosecutionas an
independent fact. For example, Robbery is the taking of property from another's presence by for
ce or threat of force.The intent element is fulfilled only by evidence showing that the defendant s
pecifically intended to steal the property. Unlikegeneral intent, specific intent may not be inferre
d from the commission of the unlawful act. Examples of specific-
intentcrimes are solicitation, attempt, conspiracy, first-
degree premeditated murder, assault, Larceny, robbery, burglary, forgery,false pretense, and Em
bezzlement.
Most criminal laws require that the specified crime be committed with knowledge of the act's cri
minality and with criminalintent. However, some statutes make an act criminal regardless of inte
nt. When a statute is silent as to intent, knowledge ofcriminality and criminal intent need not be p
roved. Such statutes are called Strict
Liability laws. Examples are lawsforbidding the sale of alcohol to minors, and Statutory
Rape laws.
The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs
where one intends the harmthat is actually caused, but the injury occurs to a different victim or o
bject. To illustrate, the law allows prosecution wherethe defendant intends to burn one house but
actually burns another instead. The concept of transferred intent applies toHomicide, battery, an
d Arson.
Felony-murder statutes evince a special brand of transferred intent. Under a felony-
murder statute, any death caused in thecommission of, or in an attempt to commit, a predicate fel
ony is murder. It is not necessary to prove that the defendantintended to kill the victim. For exam
ple, a death resulting from arson will give rise to a murder charge even though thedefendant inte
ntionally set the structure on fire without intending to kill a human being. Furthermore, the under
lying crimeneed not have been the direct cause of the death. In the arson example, the victim nee
d not die of burns; a fatal heartattack will trigger a charge of felony murder. In most jurisdictions
, a death resulting from the perpetration of certain felonieswill 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 unjustifiable injury to anoth
er person. At Common
Law, murder was the unlawful killing of one human being by another with malice aforethought,
or a predetermination to killwithout legal justification or excuse. Most jurisdictions have omitted
malice from statutes, in favor of less-
nebulous terms todescribe intent, such as purpose and knowing.
Massachusetts, for example, has retained malice as an element in criminal prosecutions. Under th
e General Laws of theCommonwealth of Massachusetts, Chapter 265, Section 1, malice is an ess
ential element of first- and second-
degreemurder. According to the Supreme Judicial Court of Massachusetts malice is a mental stat
e that "includes any unexcusedintent to kill, to do grievous bodily harm, or to do an act creating a
plain and strong likelihood that death or grievous harm willfollow" (Commonwealth v. Huot, 40
3 N.E.2d 411 [1980]).

Motives
Motives are the causes or reasons that induce a person to form the intent to commit a crime. The
y are not the same asintent. Rather, they explains why the person acted to violate the law. For ex
ample, knowledge that one will receive insurancefunds upon the death of another may be a motiv
e for murder, and sudden financial difficulty may be motive forembezzlement or burglary.
Proof of a motive is not required for the conviction of a crime. The existence of a motive is imma
terial to the matter of guiltwhen that guilt is clearly established. However, when guilt is not clearl
y established, the presence of a motive might help toestablish it. If a prosecution is based entirely
on Circumstantial
Evidence, the presence of a motive might be persuasive inestablishing guilt; likewise, the absenc
e of a motive might support a finding of innocence.

Defenses
Defenses Negating Criminal Capacity To be held responsible for a crime, a person must unders
tand the nature andconsequences of his or her unlawful conduct. Under certain circumstances, a
person who commits a crime lacks the legalcapacity to be held responsible for the act.Examples
of legal incapacity are infancy, incompetence, and intoxication.
Children are not criminally responsible for their actions until they are old enough to understand t
he difference between rightand wrong and the nature of their actions. Children under the age of s
even are conclusively presumed to lack the capacity tocommit a crime. Between the ages of seve
n and 14, children are presumed to be incapable of committing a crime. However,this presumptio
n is not conclusive; it can be rebutted by the prosecution through the admission of evidence that t
he childknew that what he or she was doing was wrong. Anyone over the age of 14 is presumed t
o be capable of committing acrime, but this presumption can be rebutted by proof of either menta
l or physical incapacity.

SHOULD MORE CRIMES BE MADE FEDERAL OFFENSES?

Enforcement of criminal laws in the United States has traditionally been a matter handled by the
states. The federalgovernment, conversely, has typically limited itself to policing only crimes aga
inst the federal government and interstatecrime. This is just one expression of the U.S. system of
Federalism, the notion that the federal government exists intandem with the states and does not,
without necessity, deprive states of their powers. The Tenth
Amendment to the U.S.Constitution is an example of federalism at work. That amendment state
s, "The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the S
tates, are reserved to the States respectively, or to the people."
Near the end of the twentieth century, however, Congress passed a host of federal laws that direc
tly overlap with existingstate criminal laws. Such laws include the Anti-
Car Theft Act of 1992, the Child Support Recovery Act of 1992, the AnimalEnterprise Protectio
n Act of 1992, and new criminal laws on Arson, narcotics and dangerous drugs, guns, Money
Laundering and reporting, Domestic
Violence, environmental transgressions, career criminals, and repeat offenders. As aresult, in 199
8, the number of criminal prosecutions in federal courts increased by 15 percent. The increase wa
s nearly threetimes the increase in federal criminal prosecutions in 1997.
In a Report of the Federal Judiciary issued at the end of 1998, U.S. Supreme Court Chief Justice
WILLIAM H. REHNQUISTcriticized the congressional movement toward federalizing the criminal ju
stice system. "Federal courts were not created toadjudicate local crimes," Rehnquist instructed, "
no matter how sensational or heinous the crimes may be." Rehnquist notedthe tremendous toll th
at federalization 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 traditionally have been ha
ndled in state courts notonly is taxing the judiciary's resources and affecting its budget needs, but
it also threatens to change entirely the nature ofour federal system." According to Rehnquist, the
problem was political in nature; senators and representatives in Congresswere using the act of la
wmaking to win or keep their seats: "The pressure in Congress to appear responsive to every hig
hlypublicized societal ill or sensational crime needs to be balanced with an inquiry into whether s
tates are doing an adequatejob in this particular area and, ultimately, whether we want most of ou
r legal relationships decided at the national rather thanlocal level."
In his 1998 report, Rehnquist cited a report on federal courts issued by the 1995 Judicial
Conference of the United
States.The Judicial Conference recommended that federal courts be used for only five types of c
ases: 1) offenses against thegovernment or its inherent interests; 2) criminal activity with substan
tial multi-
state or international aspects; 3) criminalactivity involving complex commercial or institutional e
nterprises most effectively prosecuted under federal resources orexpertise; 4) serious high level o
r widespread state or local government corruption; and 5) criminal cases raising highlysensitive l
ocal issues. "Although Congress need not follow the recommendations of the Judicial Conferenc
e," Rehnquistwrote, "this Long-
Range Plan is based not simply on the preference of federal judges, but on the traditional principl
e offederalism that has guided the 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. Vict
or S. (Torry) Johnson, a representative of theNational District Attorneys Association (NDAA) on
the task force, declared in Prosecutor, "By trying to fight street crimethrough federal legislation,
Congress misleads the public into believing that a national response will be effective and that th
eproblem will be solved with federal intervention." Congress then fails to provide enough federal
funding to prosecute all thenew laws, creating a situation in which the efforts of local law enforc
ement "are undermined by the unrealistic expectationscreated by Congress' well-
publicized enactments."
In his 1999 article for Corrections Today, James A. Gondles Jr., executive director of the Americ
an CorrectionalAssociation, lamented the introduction of low-
level, local criminals into the federal system. According to Gondles, mixingsuch prisoners with b
ig-
time federal criminals blurs the jurisdictional line and makes it "more difficult for those at the sta
teand local levels to do their jobs."
Not everyone is troubled by the federalization of criminal law enforcement. Proponents of federa
l criminal laws argue thatthey are necessary in an increasingly mobile society. Crime tends to spa
n more than one state and even local crime canhave effects which cross state boundaries. In his a
rticle for the Hastings Law Journal, Rory K. Little, a professor of law atthe University of Califor
nia, Hastings College of Law, defended the increase in federal crimes as a protection against thei
nability of states to catch and prosecute all criminals. If the quality of justice is better in the feder
al courts, Little opines,"then problems of crime cannot be ignored federally while state criminal j
ustice systems slowly sink and justice fails."
A U.S. Supreme Court decision in March 1999 constituted an approval of increased federal autho
rity over crime. In UnitedStates v. Rodriguez-
Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), Jacinto Rodriguez-
Moreno KIDNAPPED adrug associate and took him from Texas to New Jersey, then to New York,
and finally to Maryland. Rodriguez-
Moreno wascharged with, among other crimes, kidnapping and using and carrying a firearm in re
lation to a kidnapping, an act thatviolated 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, anycrime of violence. Rodriguez-
Moreno was tried in New Jersey on the charges, even though he did not have a gun in NewJersey
.
Rodriguez-
Moreno, who did not want to be tried in New Jersey, argued that the statute did not allow the fed
eral governmentto prosecute him for the 924 crime in New Jersey because he did not commit t
he crime in that state. The Court rejectedthe argument, holding that because the crime of violenc
e (kidnapping) continued through several states, prosecution wasproper in any district where the
crime of violence was committed, even if the firearm was used or carried in only one state.The d
ecision made it easier for federal prosecutors to pick and choose the venues for their cases.

Further readings
"Federalization of Crimes: Chief Justice Rehnquist on Federalization of Crimes." 1999. Prosecut
or (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 Today (April).
Little, Rory K. 1995. "Myths and Principles of Federalization." Hastings Law Journal (April).

Cross-references
Federal Courts; State Courts; States' Rights.
All states have juvenile courts, which are separate from criminal courts. Juveniles who are accus
ed of a crime are tried inthese courts as delinquent children, rather than as criminal defendants. T
his alternative prevents children from invoking thedefense of infancy. In juvenile courts, criminal
charges lead to an adjudication rather than prosecution, because the aim ofjuvenile courts is to re
habilitate, rather than to punish. In the 1990s, some state legislatures passed laws to make it easie
rto prosecute juveniles in adult courts, especially in cases involving violent crimes.Insane person
s cannot, in a legal sense,form the intent necessary to commit a crime. They are not, therefore, cri
minally responsible for their actions. Courts haveapplied a variety of legal tests to determine the
mental state of a criminal defendant who claims that he or she was insaneat the time of the allege
d crime. One test is the M'Naghten
Rule, which was originally used by an English court in thecriminal prosecution of Daniel M'Nag
hten.
M'Naghten had an insane delusion that the prime minister of England, Sir Robert Peel, was tryin
g to kill him. Mistaking theprime minister's secretary, Edward Drummond, for the prime minister
, M'Naghten killed the secretary. At his trial, M'Naghtenasserted that he had been insane when he
committed the crime. The jury accepted his argument and acquitted him. Fromthat decision evol
ved the M'Naghten test, under which, in order to disclaim criminal responsibility, a defendant mu
st beaffected by a disease of the mind at the time he or she commits the act. The disease must cau
se the ability to reason tobecome so defective that the person does not know the nature and qualit
y of the act or else does not know that the act iswrong. A successful invocation of the M'Naghten
defense results in commitment to a mental institution for treatment, ratherthan imprisonment.A
number of states prefer the "irresistible impulse" test as the standard for determining the sanity of
acriminal defendant. If the defendant is suffering from a mental disease that prevents control of
personal conduct, he or shemay be adjudged not guilty by reason of insanity, even if he or she kn
ows the difference between right and wrong.
The Model Penal
Code of the American Law Institute established another test of insanity that has been adopted by
almostall of the federal courts and by numerous state legislatures. Under the Model Penal Code t
est, a person is not responsiblefor criminal conduct if, at the time of such conduct, he or she lacks
the capacity either to appreciate the criminality or thewrongfulness of the conduct, or to conform
his or her conduct to the requirement of law. This lack-of-
capacity excuse doesnot 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 substantial capacity" is a qualification of theM'Naghten rule and
the irresistible-
impulse test, both of which require the total absence of capacity. This test also requires ashowing
of causality. The defense is not established merely by a showing of a mental disease; rather, it is
established onlyif, as a result of the disease, the defendant lacks the substantial capacity that is re
quired in order to hold him or hercriminally responsible. For example, pyromania may be a defen
se to a charge of arson, but it is no defense to a charge oflarceny. An Irresistible
Impulse arising from anger, jealousy, or a desire for revenge does not excuse a defendant fromcr
iminal 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 criminal act. Involunta
ry intoxication is, however, avalid defense. It occurs when a person is forced to take an intoxicati
ng substance against his or her will, or does so bymistake. If a defendant's involuntary intoxicate
d condition causes a criminal act, the defendant will not be convicted if,because of the intoxicati
on, he or she is unable to appreciate the criminality of the conduct.
Fair Warning Defense The DUE PROCESS Clauses contained in the Fifth and Fourteenth Amend
ments to the U.S.Constitution require that before a defendant may be prosecuted for criminal con
duct, the law must make clear which conductis criminal. Justice Oliver Wendell
Holmes articulated the standard when he wrote that a criminal statute must give "fairwarning
in language that the common world will understand, of what the law intends to do if a certain lin
e is passed. Tomake the warning fair, so far as possible the line should be clear." McBoyle v. Uni
ted States, 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 requirement in United States. v. Lanier, 520 U.S. 259,117 S. Ct. 1219, 137 L. Ed. 2d 43
2 (1997). Lanier was a case involving a prosecution under 18 U.S.C.A. 242, aReconstruction-
era Civil
Rights law that makes it a federal crime to deprive another of "any rights, privileges, or immunit
iessecured or protected by the constitution or laws of the United States" while acting "under colo
r of any law."
Congress originally passed the law to afford a federal right in federal courts for situations when,
by reason of prejudice,passion, neglect, intolerance, or otherwise, state courts might not be as vig
ilant as federal courts in protecting the rights thatare guaranteed by the Fourteenth
Amendment to the U.S. Constitution.
Traditionally, Section 242 had been primarily invoked against police officers and prison guards.
The Lanier case arose fromallegations of sexual misconduct against the sole state Chancery Cour
t judge for two rural counties in western Tennessee,David Lanier. The trial record shows that fro
m 1989 to 1991, while Lanier was in office, he sexually assaulted severalwomen in his judicial c
hambers.
Lanier's most serious assault involved a woman whose Divorce proceedings had come before his
chancery court andwhose daughter's custody remained subject to his jurisdiction. When the wo
man applied for a secretarial job at Lanier'scourthouse, Lanier interviewed her. As the woman go
t up to leave, Lanier grabbed her, sexually assaulted her, and finallycommitted oral rape.
On five other occasions Lanier sexually assaulted four other women: two of his secretaries, a Yo
uth Services officer, and alocal coordinator for a federal program who had been in Lanier's cham
bers to discuss a matter affecting the same court.
Lanier was later charged with 11 violations of Section 242. Each count of the indictment alleged
that Lanier, acting willfullyand under color of Tennessee law, had deprived the victims of the rig
ht to be free from willful sexual assault. Before trial,Lanier moved to dismiss the indictment on t
he ground that Section 242 is void for vagueness. The district court denied themotion.
The jury returned verdicts of guilty on seven counts, and not guilty on three (one count having be
en dismissed at the closeof the prosecution's case). Lanier was then sentenced to consecutive ma
ximum terms totaling 25 years.
A panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the convictions and sentence,
United States v. Lanier, 33F.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 ambiguouscriminal statute
[i.e., Section 242] includes simple or sexual assault crimes within its coverage." United States v.
Lanier, 73F.3d 1380 (6th Cir. 1996).
Specifically, the Sixth Circuit held that criminal liability may be imposed under Section 242 only
if the constitutional rightsaid to have been violated is first identified in a decision of the U.S. Su
preme Court (not any other federal or state court),and only when that right has been held to apply
in "a factual situation fundamentally similar to the one at bar."
The Sixth Circuit then said it could not find any decision of the U.S. Supreme Court that recogni
zed, under Section 242, aright to be free from unjustified assault or invasions of bodily integrity i
n a situation "fundamentally similar" to thosecircumstances under which Lanier was charged.
In the absence of such a decision, the Sixth Circuit said that Tennessee had violated Lanier's due
process right to be fairlywarned that particular conduct is prohibited and carries with it the possib
ility for criminal punishment. Accordingly, the SixthCircuit reversed the judgment of conviction
and instructed the trial court to dismiss the indictment.
The state of Tennessee appealed, and the U.S. Supreme Court reversed the Sixth Circuit, observi
ng that there are threemanifestations of the "fair warning requirement." First, the "vagueness doct
rine" bars enforcement of statutes that eitherforbid or require an act in terms that are so vague tha
t men of common intelligence must necessarily guess at their meaningand differ as to their applic
ation. Second, the Court wrote that the "canon of Strict
Construction of criminal statutes"ensures fair warning by limiting application of ambiguous cri
minal statutes to conduct that is clearly covered. Third, dueprocess bars courts from applying a n
ovel construction of a criminal statute to conduct that neither the statute nor any priorjudicial dec
ision has fairly disclosed to be within its scope. In other words, a trial court cannot "clarify" a sta
tute bysupplying terms through its own interpretation of the law, when those terms were not clear
ly contemplated by the statutorylanguage chosen by the legislature.
However, the Court emphasized that the due process fair-
warning requirement does not require that prohibited criminalconduct be previously identified by
one of its own decisions and held to apply in a factual situation "fundamentally similar"to the de
fendant's case at bar. Instead, the Court wrote, "all that can usefully be said about criminal liabilit
y under [Section242] is that [liability] may be imposed for deprivation of constitutional right if, b
ut only if, in light of 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 opini
on. After reading the highcourt's opinion, the Sixth Circuit vacated its earlier decision and ordere
d Lanier to begin serving his sentence. One SixthCircuit judge dissented, criticizing the U.S. Sup
reme Court for not writing a clearer opinion that articulated what constituted"apparent" unlawful
conduct.
Exculpatory Defenses Exculpatory defenses are factors that excuse a competent person from lia
bility for a criminal act.Duress is an exculpatory defense. One who commits a crime as a result o
f the pressure of an unlawful threat of harm fromanother person is under duress and may be excu
sed from criminal liability. At trial, whether the defendant was under duressis a Question of
Fact for the judge or jury. The defense of duress was invoked in the 1976 trial of Patricia Campb
ell 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 Arm
y (SLA) and held for the unusual ransom of fooddistribution to the poor. Shortly after the abducti
on, Hearst sent a recorded message to her parents, in which she announcedthat she had become a
social revolutionary.On April 15, Hearst participated in a bank robbery with members of the SL
A.She was arrested in September 1975 and tried for armed bank robbery. At trial, Hearst's lawye
rs argued, in part, thatHearst's participation in the robbery had been caused by duress. Hearst test
ified that she had feared for her life as she hadstood inside the Hibernia Bank. On cross-
examination, Hearst invoked her Fifth Amendment privilege against Self-
Incrimination 42 times. The refusal to answer so many prosecution questions might have damag
ed Hearst's credibility, andthe jury did not accept her argument of duress. Hearst was convicted a
nd sentenced to seven years in prison. (PresidentJIMMY CARTER commuted her sentence on Febru
ary 1, 1979, and ordered her release from prison.)
Entrapment is another exculpatory defense to criminal charges. Entrapment exists if a law enfor
cement officer induces aperson to commit a crime, for the purpose of instituting a criminal prose
cution against that person. It is not available if lawenforcement 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 criminalstatute was not published or made reasonably available prio
r to the act; the accused reasonably relied on the contraryteaching of another statute or judicial de
cision; or, in some jurisdictions, the accused reasonably relied on contrary officialadvice or a con
trary official interpretation. A Mistake of
Fact may excuse a defendant if the mistake shows that thedefendant lacked the state of mind req
uired for the crime. For example, in a specific-
intent crime such as embezzlement,evidence that the accused was unaware of transfers into his or
her own bank account would negate the specific criminalintent required for conviction.
Justification defenses include necessity, Self-
Defense, defense of others, and defense of property. If a person acts toprotect 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 defense of others are permissible when itreasonably appears necessary that force is r
equired to defend against an aggressor's imminent use of unlawful force.Nondeadly force may be
used in order to retain property, and Deadly
Force may be used only to prevent serious bodilyharm.
Merger
Under common law, when a person committed a major crime that included a lesser offense, the l
atter merged with theformer. This meant that the accused could not be charged with both crimes.
The modern law of merger applies only tosolicitation and attempt. One who solicits another to co
mmit a crime may not be convicted of both the solicitation and thecompleted crime. Likewise, a
person who attempts and completes a crime may not be convicted of both the attempt and theco
mpleted crime.

Attempt
An attempt to commit a crime is conduct intended to lead to the commission of the crime. It is m
ore than mere preparation,but it falls short of actual commission of the intended offense. An inte
nt to commit a crime is not the same as an attempt tocommit a crime. Intent is a mental quality th
at implies a purpose, whereas attempt implies an effort to carry that purpose orintent into executi
on. An attempt goes beyond preliminary planning and involves a move toward commission of th
e crime.
As a general rule, an attempt to commit a crime is a misdemeanor, whether the crime itself is a fe
lony or a misdemeanor.However, in a case of violent crime, an attempt may be classified as a fel
ony. Attempted murder and attempted rape areexamples of felonious attempts. In an attempt case
, the prosecution must prove that the defendant specifically intended tocommit the attempted cri
me that has been charged. General intent will not suffice. For example, in an attempted-
murdercase, evidence must show a specific intent to kill, independent from the actual act, such as
a note or words conveying theintent. In a murder case, intent may be inferred from the killing its
elf.

Conspiracy
When two or more persons act together to break the law, conspiracy is an additional charge to th
e intended crime. Forexample, if two persons conspire to commit robbery, and they commit the r
obbery, both face two charges: conspiracy tocommit robbery and robbery.

Further readings
Jonathan Clough, and Carmel Mulhern. 1999. Criminal Law. Sydney: Butterworths.Kaplan, 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 Recent Precede
nt Recognizing DiminishedCapacity, from Commonwealth v. Grey to Commonwealth v. Sama."
Massachusetts Law Review (June).

Cross-references
Juvenile Law.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.
criminal law
n. those statutes dealing with crimes against the public and members of the public, with penalties
and all the proceduresconnected with charging, trying, sentencing and imprisoning defendants c
onvicted of crimes. (See: crime, felony,misdemeanor)