Fundamentals of Criminal Law and Procedures







Fundamentals of Criminal Law and Procedures

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This article examines the fundamental aspects and elements of law. It also examines the criminal procedures. The article looks at the sources and elements of criminal law. Though common law was fundamental in determining most of the laws, other laws have replaced it over time. The court systems use the Model Penal Code in as a reference in making rulings. They also use common law as a means of reference since they have abolished it all together. Statutory laws and ordinances are important especially when dealing with crimes of a lesser magnitude. The courts rulings decisions can only be binding to that particular court and the other inferior courts. The Supreme Court has the final decision and it can overrule the rulings of the lower courts. It is not easy to determine the difference between federal and statutory laws. Only federal cases are entitled to a grand jury. It details the purpose for punishment and examines the various theories of punishment such as retribution, rehabilitation and incapacitation. The article also examines criminal procedures. It especially looks at the rights of the offender as provided for in the bill of rights in the fourth, fifth, sixth and eight amendments. The due process ensures that the suspects have fair representation.










Criminal law is a branch of law that defines crime and what it involves. It establishes prohibited conduct and the punishment for committing the crime.  Crimes involve actus rea, which is forbidden by criminal law. Most wrongful acts are accompanied by mens rea.  Mens rea is different from motive; it is rather the mental purpose that one has to act and not the reason for the deed.  Some crimes are committed intentionally while others are not so.  Felonies such as murder, rape, assault and battery attract a longer prison terms than misdemeanors.  Infractions are less serious than misdemeanors.  The suspects pay a monetary fine.  Crimes against persons include assault, murder, arson battery, kidnapping, rape and other forms of sexual abuse.  Crimes against property include robbery, fraud, theft and burglary. Criminal procedures are the rules that govern criminal prosecutions. The prosecutors have to recognize and consider the rights of suspects and the offenders as provided by the various sources of law.

Sources of criminal law and elements of crime

Sources of procedural criminal law include common law, statutory law, ordinances, regulations, federal constitution and state constitution.  The English common law constitutes a large part of criminal law.  In the seventeenth and eighteenth centuries, the judges defined crimes based on tradition.  Very few people outside the legal profession understood common law.  When a court delivers judgment, that decision remains binding for that court and the other inferior courts.  Common law develops according to the principles of precedent or stare decisis.  Although the law is still applicable in some cases, most courts use penal statues which are either enacted by congress and state legislatures.  The statutes can either supplement or replace common law.  In some jurisdictions, the changing of statutes has led to the abolishment of some common law crimes and the use of common law to make their ruling.  Even in these jurisdictions, judges can still use common law as a form of reference.  Ordinances are laws set up by a county or a city.  The Model Penal Code is not law but it acts as a guide in interpreting criminal law.  Different states may interpret crime in different ways (Bacigal, 2008).

The general acts of crime include mens reus, actus reus, concurrence principle, causation and harm (Brody et al, 2000).  Mens rea means guilty mind and it is useful in determining the goal that the person had when committing the particular crime.  There is always the mental side to be considered in every crime.  Most serious crimes are intentional.  The Model Penal Code uses four levels of blameworthiness based on mens rea.  These are purposely, knowingly, negligently and recklessly.  Actus reus, guilty act, can be described as the result of conduct.  It includes the action taken, threat of action and omission.

Criminal procedure and punishment

Criminal procedure specifies the rights of the defendants, limitation of justice personnel such as the police in crime investigations and the criminal process.  The police, or any other witness, cannot present evidence which they have acquired illegally.  This is enforced by the Supreme Court under the exclusionary rule which prohibits all illegal searches and seizures.  Though there are common sources of criminal law.  Different states have their own procedures.  The constitution protects the offenders and offers them some rights.  Criminal offenders have a right to a jury which is provided in the sixth amendment.  The sixth amendment states that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury.  This does not apply to petty crimes and cases of impeachment. The defendant also has a right to a public trial. In addition, the state should also provide counsel for those who cannot afford.  Suspects have a right to a speedy trial as provided in the sixth amendment.  This is important because it prevents incarceration and minimizes anxiety.

A suspect has the right to be silent and seek counsel before any interrogations as provided in the case of Miranda v. Arizona.  Suspects arrested for misdemeanors such as traffic offences and drunkenness can be released and ordered to appear in court later.  However, felony suspects are held in custody (Scheb, 2008).  Due process prohibits convictions except the prosecution proofs beyond reasonable doubt that the suspect committed the crime in question. The trial process is a complicated affair, which may take a long time. The prosecutor uses testimony from witnesses, physical evidence and confessions to convince the jury of the defendant’s guilt beyond reasonable doubt. The defense attorney ensures that the rights of the defendants are considered and not violated. Evidence presented at the trial can be real, testimonial, documentary or circumstantial.

‘Nullum crimen nulla poena, sine lege’, meaning that there is no crime without law, no punishment without law shows the importance of law especially to suspected offenders.  The judiciary and other justice officials cannot prosecute or convict a suspect without the law.  The law accords the suspects several rights which they can use to their advantage.  It is the responsibility of the government to punish those caught committing criminal acts for the sake of other people’s safety.  For punishment to be effective, the offender has to experience a sense of loss or suffering.

Before sentencing the prosecution has to show the defendant’s guilt beyond reasonable doubt.  The Model Penal Code requires that the punishment handed to the offender has to be proportional to the gravity of the offense.  The eighth amendment protects the offender from having to pay excessive bail.  Bail is not a fundamental right and neither is a pre-trial. However, the Supreme Court can set, and usually do, high amounts of bail for those who are thought to have committed serious crimes.  Those who cannot afford to pay the required amount stay in jail while they wait to be tried in court (Morrison, 1996).  Criminal punishment includes fines, parole, probation, execution and loss of liberty.

Theories of punishment


In criminal law, penalties enforced ought to be painful and unpleasant, administered by the state, prescribed by the law and administered intentionally.  Utilitarianism supports deterrence theory and some aspects of retribution.  Offenders are aware that what they did is against the law and they are also well aware of the consequences.  General deterrence assumes that punishment is public and the public does not see criminal justice as erratic.  This theory can lead to severe punishment of other serious crimes. it looks at the future implications of punishment since people might be compelled to change their ways based on the threat.  Punishment of criminals reduces crimes that will be committed in future especially by threatening potential offenders.  The suffering threatened has to exceed the pleasure that would be obtained from committing the crime.


Retribution or Just Desert focuses on punishing the offender.  This theory looks at the past in order to justify the punishment.  It posits that a person has to be punished as a revenge for their harm to society. The offenders deserve to be punished because of the crimes they have committed. Offenders should be punished even if no utilitarianism is achieved.  In utilitarianism theory there is a probability that an innocent person might be punished.  Retribution theory only punishes offenders who have chosen to commit the crime willingly.  This means that the mentally disturbed and depressed persons are not punished.  Those who commit the crime because they have no other choice are also not punished.  Supporters of this theory are totally opposed to the use of incapacitation as a means of punishment.  Critics of this theory argue that it promotes hatred.  The society is encouraged to hate the offender based on the fact that he or she deserves the punishment given to him or her (Singer & La Fond, 2010).


Incapacitation theory posits that a criminal should not pose any more danger to society.  The punishments in this theory include execution, and incarceration among others.  Death penalties that are employed under incapacitation include lethal injections, electrocution, hanging and lethal gas.  They are given to suspects who have been accused of murder.  The eighth amendment prohibits cruel and unusual punishment but the death penalty is still accepted in some states.  Other states have chosen to abolish it altogether and they have replaced it with life imprisonment without the possibility of parole.  It is not possible to determine fully whether the offender will be a danger to the society once he or she is released there is therefore a likelihood of ‘over-incapacitating’.  The public feels safer when dangerous criminals are put behind bars.  They are assured of their safety and they do not have to live in fear.

Rehabilitation and incarceration

Rehabilitation focuses on the offender rather than the offence.  It supposes that it is possible for offenders to change.  Uses treatment programs such as therapy, which are aimed at converting the offenders and making them become better citizens.  Some of the offenders commit crime because they do not know better and they come from difficult backgrounds. Pragmatic rehabilitation is focused on the outward behavior.  It conditions the offenders to conform to the societal norms.  Paternalistic rehabilitation on the other hand aims at reforming the offender morally.  It also involves the society in the reformation process.  Supporters of this system show their confidence in the country’s rehabilitation and correctional facilities.  They believe that they are centers of reform and once the offenders rejoin the society, they are able to live peacefully with others without causing harm.  Incarceration is the physical confinement in locked facilities such as prisons.  Restitution is when the offender makes financial payments or provides other services to the victim.  It is usually done in combination with other forms of punishment. It is deemed reasonable that offenders should pay for their crimes since they also benefit from those activities.


One cannot underestimate the power and the importance of criminal law.  The sentencing and subsequent punishments that are handed to the offenders are usually dependent on the level and type of the crime and the habits of the offenders.  Habitual offenders of misdemeanors can have their cases tried as felonies and they usually attract heavy punishments than first time offenders.  The country has come a long way in modifying laws that govern criminal proceedings.  The decisions of the court rulings and the legislatures are important.  Some of the punishments such as house arrest, parole, probation and community work help in reducing congestion in prisons.  Rehabilitating offenders is important since it helps them cope once they rejoin the community.  Successful rehabilitation programs instill hope in the public.  It assures them that correctional facilities can become centers of rehabilitation.  Majority of the crimes committed are intentional and it is hard to separate mens rea from the actual crimes.







Bacigal, J. R. (2008). Criminal law and procedure. Independence, KY: Cengage Learning

Brody, C. D., Acker, R. J., & Logan, A. W. (2000). Criminal law. Sudbury, MA: Jones & Bartlett Learning.

Morrison, B. A. (1996). Fundamentals of American law. New York, NY: Oxford University Press

Scheb, M. J. (2008). Criminal Procedure. Independence, KY: Cengage Learning

Singer, G. R., & La Fond, Q. J. (2010) Criminal law. 8th Avenue, New York: Aspen Publishers Online





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