Criminal Law And Its Processes PdfBy Ambra D. In and pdf 30.11.2020 at 23:17 4 min read
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Any theory of criminal law must explain why criminal law is distinctive—why it is a body of law worthy of separate attention. The focus of this entry is Anglo-American criminal law and scholarship thereon. Many of the questions raised, and many of the answers considered, are nonetheless of general application. The life of the criminal law begins with criminalization. On this view, we are not invited to commit crimes—like murder, or driving uninsured—just as long as we willingly take the prescribed legal consequences.
As far as the law is concerned, criminal conduct is to be avoided. This is so whether or not we are willing to take the consequences. It is possible to imagine a world in which the law gets its way—in which people uniformly refrain from criminal conduct.
Obviously enough this is not the world in which we live. These powers and permissions exist ex ante —prior, that is, to the commission of crime. We can add those that exist ex post —once crime has been committed.
By the time cases reach the courts those accusers are typically state officials or those to whom the state has delegated official power. Some legal systems do make space for private prosecutions. But such prosecutions can be discontinued or taken over by state officials and their delegates.
In this way, the state exercises a form of control over criminal proceedings that is absent from legal proceedings of other kinds Marshall and Duff It may seem from the above that criminal proceedings are tilted heavily in favour of the accusing side. These typically include the right to be informed of the accusations in question, the right to confidential access to a lawyer, and the privilege against self-incrimination.
At least on paper, the procedural protections on offer in criminal proceedings are more robust than those available to the accused in legal proceedings of other kinds. This is explained in large part by the consequences of criminal conviction. This is to say nothing of criminal sentences themselves. This is not to say that suffering or deprivation must be the ultimate end of those who punish.
What it cannot be is a mere side-effect. This is one thing that distinguishes criminal sentences—at least of the punitive kind—from the reparative remedies that are standard fare in civil law. The award may remain a reparative success. It cannot be anything other than a punitive failure Boonin , 12—17; Gardner Obviously suspicions are sometimes misplaced.
So it is no surprise that the most destructive powers and permissions are jealously guarded by the criminal law. But a moot court has no power to detain us in advance, to require us to appear before it, or to sentence us to imprisonment. Force used to achieve any of these things would itself be criminal, however proportionate the resulting punishment might be.
As this example shows, criminal law is characterised by an asymmetry—it bestows powers and permissions on state officials and delegates which are withheld from private persons, such that the latter are condemned as vigilantes for doing what the former lawfully do Thorburn a, 92—93; Edwards forthcoming.
This remains the case—often to the great frustration of victims and their supporters—even if the official response, assuming it comes at all, will be woefully inadequate.
Few deny that one function of criminal law is to deliver justified punishment. Some go further and claim that this is the sole function of criminal law Moore , 28— Call this the punitive view. Rules of criminal procedure and evidence, on this view, help facilitate the imposition of justified punishment, while keeping the risk of unjustified punishment within acceptable bounds.
Rules of substantive criminal law help give potential offenders fair warning that they may be punished. Both sets of rules combat objections we might otherwise make to laws that authorize the intentional imposition of harm. To combat objections, of course, is not itself to make a positive case for such laws. That case, on the punitive view, is made by the justified punishments that criminal courts impose. This is not to say anything about what the justification of punishment is.
It is merely to say that criminal law is to be justified in punitive terms. Some object that this focus on punishment is misplaced. The central function criminal law fulfills in responding to crime, some say, is that of calling suspected offenders to account in criminal courts Gardner , 80; Duff c, This view puts the criminal trial at the centre, not just of criminal proceedings, but of criminal law as a whole Duff a, Trials invite defendants to account for themselves either by denying the accusation that they offended, or by pleading a defence.
The prospect of conviction and punishment puts defendants under pressure to offer an adequate account. Call this the curial view. It differs from the punitive view in two ways. First, part of the positive case for criminal law is independent of the imposition of punishment.
Second, part of the positive case for imposing criminal punishment is dependent on the punishment being part of a process of calling to account. The following two paragraphs expand on both these claims.
As to the first, we often have reason to account for our actions to others. We can leave open for now the precise conditions under which this is so. But it is plausible to think that if Alisha steals from Bintu she has reason for account for the theft, and that if Chika intentionally kills Dawn she has reason to account for the killing.
Defenders of the curial view argue that criminal proceedings are of intrinsic value when defendants are called to offer accounts of themselves that they have reason to offer in criminal courts Gardner , —; Duff c, 15— Imagine Alisha stole from Bintu because she was under duress. Imagine Chika intentionally killed Dawn to defend herself or others. Neither of these defendants, we can assume, is justifiably punished. On the curial view, things are different.
Alisha and Chika both have reason to account for their behaviour—to explain what they did and why they did it. Criminal proceedings invite each to provide that account and put each under pressure to do so. Assuming Alisha and Chika have reason to account in a criminal court, proceedings in which they are called to do so are of intrinsic value.
To endorse the curial view is not, of course, to say that we should do away with criminal punishment. But it is to say that the connection between trial and punishment is not merely instrumental. Some think that the facts that make punishment fitting—say, culpable wrongdoing—obtain independently of criminal proceedings themselves Moore , The fitting way to respond to criminal wrongdoing, on this view, is to call the wrongdoer to account for her wrong.
We can see the implications of this view by imagining a world in which trials are abolished, because some new-fangled machine allows us to identify culpable wrongdoers with perfect accuracy.
On the curial view, the punishments we impose are inherently defective: they are not imposed as part of a process of calling to account. Though our new-fangled machine might justify doing away with trials—once we factor in how expensive they can be—we would lose something of value in doing away with them. If criminal law does have a particular function, we can ask whether that function is distinctive of criminal law. We can ask, in other words, whether it helps distinguish criminal law from the rest of the legal system.
It has been claimed that criminal law is distinctive in imposing punishment Moore , 18—30; Husak , One might also claim that criminal law alone calls defendants to account. But punishments are imposed in civil proceedings—exemplary damages are the obvious case. And it is arguable that civil proceedings also call defendants to account—that they too invite defendants to offer a denial or plead a defence; that they too use the prospect of legal liability to put defendants under pressure to account adequately Duff a.
In response, one might try to refine the function that is distinctive of criminal law. What we should make of this proposal depends on what a public wrong is Lamond ; Lee ; Edwards and Simester To make progress, we can distinguish between primary duties—like duties not to rape or rob—and secondary duties—like duties to answer, or suffer punishment, for rape or robbery.
We incur duties of the latter kind by breaching duties of the former. Many wrongs are both crimes and torts. So the two bodies of law often respond to breaches of the same primary duty. A more promising proposal looks to secondary duties. Perhaps the function of civil law is to respond to wrongs on behalf of some of us —to discharge secondary duties owed to particular individuals. This might be thought to explain why criminal proceedings, unlike civil proceedings, are controlled by state officials: why officials can initiate proceedings that individual victims oppose, and discontinue proceedings that victims initiate.
The view described in the previous paragraph conceives of criminal law as an instrument of the community—a way of ensuring that the community gets what it is owed from wrongdoers. Call it the communitarian view. If we combine this with the curial view, the distinctive function of criminal law is to seek answers owed to the community as a whole.
One might doubt that the functions of criminal and civil law can be so neatly distinguished. More importantly, one might claim that in the case of paradigmatic crimes—like robbery, rape, or battery—criminal law responds to wrongs on behalf of particular individuals—on behalf of those who have been robbed, raped, or battered.
Those who reject the communitarian view might be thought to face the following difficulty: they might be thought to lack an explanation of official control over how far criminal proceedings go. Not necessarily. First, we should not always require the wronged to have to pursue those who have wronged them. Second, we should not always support those who think themselves wronged in pursuing alleged wrongdoers. As to the first point, some are trapped in abusive relationships with those who wrong them.
Others are susceptible to manipulation that serves to silence their complaints. Some wrongdoers can use wealth and social status to stop accusers in their tracks. As to the second point, the temptation to retaliate in the face of wrongdoing is often great.
It is all too easy for the pursuit of justice to become the pursuit of revenge, and for the perceived urgency of the pursuit to generate false accusations. Official control can help vulnerable individuals—like those described above—to get what they are owed.
criminal law and its processes: cases and materials pdf
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Criminal Law 12th Edition Pdf
Publisher: University of Minnesota Libraries Publishing. I found this textbook to be an excellent resource for an upper-division, undergraduate course in Criminal Law. Criminal law is a relatively straight-forward topic and this text does a good job of providing a good overview of the topic.
Kadish, Stephen J. Schulhofer, Rachel E. Buy, rent or sell.
(PDF)Criminal Law and its Processes: Cases and Materials (Aspen Casebook Series)
Any theory of criminal law must explain why criminal law is distinctive—why it is a body of law worthy of separate attention. The focus of this entry is Anglo-American criminal law and scholarship thereon. Many of the questions raised, and many of the answers considered, are nonetheless of general application.
Rating: criminal law and its processes cases and materials Nov 25, Posted By Hermann Hesse Media TEXT ID e Online PDF Ebook Epub Library.