Criminal Law is the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons. Substantive criminal law defines particular crimes, and procedural law establishes rules for the prosecution of crime. In a democratic society, it is the function of legislative bodies to decide what behavior will be made criminal and what penalties will be attached to violations of the law.
Capital punishment(1) may be imposed in some jurisdictions for the most serious crimes. And physical or corporal punishment(2) may still be imposed such as whipping or caning(3), although these punishments are prohibited in much of the world. A convict may be incarcerated(4) in prison or jail and the length of incarceration may vary from a day to life.
Criminal LawCriminal law is a reflection of the society that produces it. In an Islamic theocracy, such as Iran, criminal law will reflect the religious teachings of the Koran(5); in a Catholic country, it will reflect the tenets of Catholicism. In addition, criminal law will change to reflect changes in society, especially attitude changes. For instance, use of marijuana(6) was once considered a serious crime with harsh penalties, whereas today the penalties in most states are relatively light. As public tolerance of marijuana use grew, the severity of the penalties was reduced. As a society advances, its judgments about crime and punishment change.
2. Elements of a Crime
Obviously, different crimes require different behaviors, but there are common elements necessary for proving all crimes. First, the prohibited behavior designated as a crime must be clearly defined so that a reasonable person can be forewarned that engaging in that behavior is illegal. Second, the accused must be shown to have possessed the requisite intent to commit the crime. Third, the state must prove causation. Finally, the state must prove beyond a reasonable doubt that the defendant committed the crime.
(1) actus reus
The first element of crime is the actus reus.Actus is an act or action and reus is a person judicially accused of a crime. Therefore, actus reus is literally the action of a person accused of a crime. A criminal statute must clearly define exactly what act is deemed “guilty”—that is, the exact behavior that is being prohibited. That is done so that all persons are put on notice that if they perform the guilty act, they will be liable for criminal punishment. Unless the actus reus is clearly defined, one might not know whether or not one's behavior is illegal.
Actus reus may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. For example, the act of Cain striking Abel might suffice,(7)or a parent's failure to give food to a young child also may provide the actus reus for a crime.
Where the actus reus is a failure to act, there must be a duty of care(8). A duty can arise through contract, a voluntary undertaking, a blood relation, and occasionally through one's official position. Duty also can arise from one's own creation of a dangerous situation.
(2) mens rea
A second element of a crime is mens rea. Mens rea refers to an individual's state of mind when a crime is committed. While actus reus is proven by physical or eyewitness evidence, mens rea is more difficult to ascertain. The jury must determine for itself whether the accused had the necessary intent to commit the act.
A lower threshold of mens rea is satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. This is recklessness(9). For instance, if Cain tears a gas meter from a wall, and knows this will let flammable gas escape into a neighbor's house, he could be liable for poisoning. Courts often consider whether the actor did recognize the danger, or alternatively ought to have recognized a risk. Of course, a requirement only that one ought to have recognized a danger(though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law.
Wrongfulness(10) of intent also may vary the seriousness of an offense. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder(11), whereas a killing affected by reckless acts lacking such a consciousness could be manslaughter(12).
(3) Causation
The next element is causation.Often the phrase “but for” is used to determine whether causation has occurred. For example, we might say “Cain killed Abel”, by which we really mean “Cain caused Abel's death.” In other words, “But for Cain's act, Abel would still be alive.” Causation, then, means “but for” the actions of A, B would not have been harmed. In criminal law, causation is an element that must be proven beyond a reasonable doubt.
(4) Proof beyond a Reasonable Doubt
In view of the fact that in criminal cases we are dealing with the life and liberty of the accused person, as well as the stigma accompanying conviction, the legal system places strong limits on the power of the state to convict a person of a crime. Criminal defendants are presumed innocent. The state must overcome this presumption of innocence by proving every element of the offense charged against the defendant beyond a reasonable doubt to the satisfaction of all the jurors. This requirement is the primary way our system minimizes the risk of convicting an innocent person.
The state must prove its case(13) within a framework of procedural safeguards that are designed to protect the accused. The state's failure to prove any material element of its case results in the accused being acquitted or found not guilty, even though he or she may actually have committed the crime charged.
3. Strict Liability
In modern society, some crimes require no more mens rea, and they are known as strict liability offenses. For instance, under the Road Traffic Act 1988 it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit.
Strict liability can be described as criminal or civil liability notwithstanding the lack mens rea or intent by the defendant. Not all crimes require specific intent, and the threshold of culpability(14) required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly.
Law school is the place where lawyers learn all the tricks of their trade.
I sat in on a legal ethics class at Wuthering Heights University(15).
The instructor said, “Today were going to take a hypothetical case. A man named Hatfield is suing his surgeon for malpractice(16) because his doctor cut off the wrong leg.”
“Tina, you're the lawyer for the plaintiff. Tommy, you are the insurance company's defense lawyer. Tina, you go first.”
Tina said, “Well, first I have to prove the doctor didnt know one leg from the other. I use charts(17), X-rays and slides to show the leg the surgeon removed was a healthy one. To do this, I have to call expert witnesses(18) to testify to this effect.”
The professor said, “And how do you find the expert witnesses to testify for your client?”
“I will just go to the hospital and ask if I can borrow them.”
“No, Tina. You have to pay expert witnesses to testify. Since they are experts, they get ＄5,000 a day, plus lunch and transportation. Remember, the defense is going to hire their own expert witnesses who will say cutting off the wrong leg happens all the time.
Continue, Tina.”
Tina said, “I will put my client on the stand(19) and he will testify(20) he could not find work as a dancer after his leg was removed.”
“Tommy, you object because that fact is irrelevant.”
Tommy said, “I object(21).”
The professor continued, “I will be the judge in this case and say, ‘Objection overruled.’ I will tell the jury to ignore the defense objection. As soon as the defense lawyer utters it, the jury will ignore the judge's instructions(22) and remember it. Now, Tommy, it's the defense's turn.”
“Ladies and gentlemen of the jury, Hatfield signed a form(23) giving permission to cut off his leg and did not specify which one. Once he signed the paper it was no longer the surgeon's responsibility.”
Tommy said, “I would like to enter(24) Exhibit(25) A.”
“What is it?” the professor asked.
“When Hatfield went to college, he flunked Medieval History and was kicked off the football team.”
Tina said, “Objection. His school grades have nothing to do with his leg.”
The professor said, “Now class, pay attention. This is very import(26) for anyone who is defending a client in this kind of a case. You have to smear(27) his reputation every chance you can. If he is divorced or has unpaid traffic tickets, try to put it into the record. Get the jury to forget the amputation(28) and look at Hatfield as a moneygrubbing, hateful scoundrel.”
“I hope you have learned something today. As the great lawyer O.J. Simpson once said, ‘Winning is everything.’”
（“Moot Court” By Art Buchwald）
Ⅳ. EXERCISES Ⅳ．练习
1. Answer the following questions.
（1）Describe the characteristics of the criminal law.
（2）What are the elements of a crime?
（3）What is your understanding of actus reus?
（4）Does every crime need mena rea?
（5）What is your understanding of strict liability in criminal law?
2. Translate the following terms into English.
（1）专家证人
（2）注意义务
（3）放任行为，轻率行为，鲁莽行为
（4）不正当性
（5）非预谋杀人罪
（6）有罪，有罪性
3. Translate the following terms into Chinese.
（1）capital punishment
（2）corporal punishment
（3）actus reus
（4）mena rea
（5）beyond a reasonable doubt
（6）strict liability
4. Match the given terms with the proper explanation.
A. duress
B. entrapment
C. double jeopardy
D. selective prosecution
E. speedy trial
F. prosecutorial misconduct
（1）Any unlawful threat or coercion used to induce another to act(or not act) in a manner they otherwise would not(or would).
（2）In criminal law, it is constituted by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.
（3）It is a procedural defense that forbids a defendant from being tried again on the same or similar charges following a legitimate acquittal or conviction.
（4）The procedural defense entail an argument that persons of different age, race, religion, or gender, were engaged in the same illegal actions for which the defendant is being tried and were not prosecuted, and that the defendant is only being prosecuted because of a bias.
（5）It refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings, which is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair trial.
（6）It is a procedural defense; via which, a defendant may argue that they should not be held criminally liable for actions which may have broken the law, because the prosecution acted in an “inappropriate” or “unfair” manner.
5. Choose the suitable word(s) from the box and fill in the blanks.
involuntary mens rea justification threatened motive culpability sentence
A defendant who raises a defense of duress has actually done everything to constitute the actus reus of the crime and has the (1) because he or she intended to do it in order to avoid some (2) or actual harm. Thus, some degree of (3) already attaches to the defendant for what was done. In criminal law, the defendant's (4) for breaking the law is usually irrelevant although, if the reason for acting was a form of (5), this may reduce the (6). The basis of the defense is that the duress actually overwhelmed the defendant's will and would also have overwhelmed the will of a person of ordinary courage, thus rendering the entire behavior (7).
6. Translate the following sentences into Chinese.
（1）The procedure for how charges are filed varies from jurisdiction to jurisdiction. Some jurisdictions give the police greater discretion in charging defendants with specific crimes, while others place more power with the prosecutor's office.
（2）A defense consists of evidence and arguments offered by a defendant and his or her attorneys to show why that person should not be held liable for a criminal charge.
（3）Under the law, defense of third persons always requires that the defender befree from fault and that he or she act to aid an innocent person who is in the process of being victimized.
（4）Crimes are prosecuted by public attorneys representing the community at large, and not by privately retained counsel.
（5）Telling a lie may be a character flaw, but the criminal law punishes only the most harmful lies, e.g., material misstatements made under oath in judicial proceedings(perjury).
（6）Procedural defenses make the claim that defendants were in some manner discriminated against in the justice process or that some important aspect of official procedure was not properly followed and that, as a result, they should be released from any criminal liability.
（7）In modern penal codes, the line distinguishing felonies from misdemeanors is drawn differently than it was in the past. Generally speaking, an offense punishable by death or imprisonment in a state prison is a felony.
（8）The list of felonies was short: murder, manslaughter, arson, mayhem, rape, robbery, larceny, burglary, prison escape, and(perhaps) sodomy. All other criminal offenses were misdemeanors.
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(1) capital punishment：死刑。The legally authorized killing of someone as punishment for a crime.
(2) corporal punishment：肉刑，身体刑。Physical punishment, such as caning or flogging.
(3) caning:（作为惩罚的）鞭笞。A beating with a cane as a punishment.
(4) incarcerate：监禁。Incarceration is the detention of a person in prison, typically as punishment for a crime. People are most commonly incarcerated upon suspicion or conviction of committing a crime, and different jurisdictions have differing laws governing the function of incarceration within a larger system of justice.
(5) Koran：（伊斯兰教）《古兰经》（又可译作《可兰经》；亦作Quran）。The Islamic sacred book, believed to be the word of God as dictated to Muhammad by the archangel Gabriel and written down in Arabic.
(6) marijuana：大麻；大麻制品；大麻毒品。Cannabis, especially as smoked in cigarettes.
(11) murder：谋杀，谋杀罪。在普通法上，谋杀罪的定义是：有预谋恶意地非法终止他人生命的行为。The killing of a human being with malice aforethought.
(12) manslaughter：非预谋杀人罪。指无预谋恶意地非法终止他人生命的行为。The unlawful killing of a human being without malice aforethought. Also termed(in some jurisdictions) culpable homicide.普通法把非预谋杀人罪分为非预谋故意杀人（voluntary manslaughter）和过失杀人（involuntary manslaughter）。involuntary manslaughter是指homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felonymurder rule；与之相对应，voluntary manslaughter指an act of murder reduced to manslaughter because of extenuating circumstances such as adequate provocation(arousing the “heat of passion”，激情杀人) or diminished capacity。
(14) culpability：有罪，有罪性。From a legal perspective, culpability describes the degree of one's blameworthiness in the commission of a crime or offense. Except for strict liability crimes, the type and severity of punishment often follow the degree of culpability.除法定的严格责任的刑事案件外，行为人如被认为有罪（culpability），须具有法律要求的蓄意、明知、放任或过失等主观上的犯罪构成要件。
(17) chart：表格。A sheet presenting information in the form of graphs or tables。
(18) expert witness：专家证人。A witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical or other specialized opinion about the evidence or a fact issue. 专家证人所作的“专家证言”叫做“expert testimony”。
(19) put my client on the stand：把当事人推向证人席。A witness stand：证人席。
(20) testify：证明，作证。
(21) I object：我反对。I object, your honor为“法官大人，我反对”，有时也直接说“Objection”。法官如果认为反对有效，则说“sustained”；如果认为无效，则“overruled”。
(22) instruction或jury instruction：（法律）法官对陪审团的指示，对此陪审团应该遵守。Jury instruction， A direction or guideline that a judge gives a jury concerning the law of the case, often shortened to instruction.
(23) form：格式合同。
(24) enter：提交，或submit。
(25) exhibit：向法庭提交的作为证据的文件或物品。A document, record, or other tangible object formally introduced as evidence in court.
(26) import：意思, 重要性。
(27) smear：中伤。to stain or attempt to destroy the reputation of.