Criminal Law
Criminal law is the body of law that relates to crime. It regulates social conduct. It includes the punishment of people who violate these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution and victim compensation than on punishment. The burden of proof is beyond a reasonable doubt.
The United States has the highest prison rate in the world at 724 people per 100,000 and leads the world with the greatest number of prisoners 2,193,798. In contrast, China, the world’s most populous country with over 1.3 billion people, four times the population of the United States has only 1,548,498 prisoners. The International Centre for Prison Studies, Prison Population List (PDF).
Our criminal system is imperfect, full of contradictions, and is confusing to most people. Various studies estimate that between 2.3 and 5% of all prisoners in the United States are innocent. One study estimated that up to 10,000 people may be wrongfully convicted of serious crimes each year. A 2014 study estimated that 4.1% of inmates awaiting execution on death row in the United States are innocent and that at least 340 innocent people may have been executed since 1973.
All crimes have the following four elements in common:
- a voluntary act known as actus reus. Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability
- a culpable state of mind known as mens rea. Mens Rea, (a guilty mind), the person purposeful intended to perform the act that was illegal.
- “concurrence” between the mens rea and the actus reus. Both an act and intent to do the act must occur together. A person cannot be punished for mere thoughts of doing something harmful. For instance, I say, "I intend to rob a bank", but never commit the act, I cannot be found guilty of bank robbery.
- causation of harm (or risk). requires that harm must result from an act.
Never waive a right or plead guilty unless you fully understand the consequences. You can always change a not guilty plea to guilty or waive a right at a later time when you are better informed. A plea is a person’s formal response to a criminal or traffic charge. A person charged with a criminal or traffic offense is called the defendant. A defendant is typically called upon to enter a plea at arraignment, which is the person’s first appearance in court.
In the context of our legal system, it is not “dishonest” to enter a not guilty plea even when you know you committed an offense. By pleading not guilty, you are formally denying that you are guilty of each and every element of the offense charged against you. If you are charged with a criminal offense and you are innocent, this is the plea you would enter. But you must also see your denial of the charge through a not guilty plea in the broader context of the procedure in criminal cases. By pleading not guilty, you are asking the prosecutor to present evidence that establishes all the elements of the charge against you beyond a reasonable doubt. If you are charged with a crime, you have the right to hold the government to its obligation of proving beyond a reasonable doubt that you committed a crime. In other words, you can honestly plead not guilty because, in the eyes of the law, you are considered to be innocent until the government proves you guilty. Coffin v. United States, 156 U.S. 432 (1895).
Even if you eventually plan on pleading guilty, you may discover that the government’s case against you is not as strong as you once thought; you or your attorney may be able to negotiate a plea bargain for reduced charges, more favorable terms or sentencing.
If you have been charged with a misdemeanor or a felony, the 6th Amendment to the U.S. Constitution guarantees that the court will provide you with a lawyer (a “public defender”) if you are unable to afford one for yourself. In Gideon v. Wainwright, 372 US 335 (1963), the Supreme Court unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys. The case extended the identical requirement that had been explicitly imposed on federal courts under the Fifth Amendment and Sixth Amendment. A movie, “Gideon’s Trumpet”, of Clarence Earl Gideon’s fight for the right to have publicly funded legal counsel was made in 1980 and is available on YouTube in 11 parts
Other than traffic tickets and similar violations, I have no experience with the criminal justice system. Unless I had no other choice, I would never defend myself in a situation where jail time is a consequence and my freedom is at stake. However, this is the most important time to understand the law, your options, and potential consequences. If I had no other choice but to defend myself or rely on a public defender, I would prefer to attempt a hybrid defense; however, a criminal defendant in Missouri has no right to hybrid representation, a combination of self-representation and assistance of counsel. State v. Williams, 681 S.W.2d 948, 951 (Mo.App.1984), citing U.S. v. Weisz, 718 F.2d 413, 426 n. 72 (D.C.Cir.1983)
Public defenders, in general, have heavy caseloads and tight budgets and I have always been skeptical about the quality of representation when the state or entity trying to convict appoints and pays for the defense. Loyalty often lies with who pays.
Civil Law
Civil law is a branch of the law relating to disputes, civil wrongs, contracts, and property. The rights and duties of individuals amongst themselves is the primary concern of civil law. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. The burden of proof is usually preponderance of the evidence.
A civil action brought in a court of law in which a plaintiff (also known as a claimant or complainant), initiates a lawsuit (also known as an action) and claims to have incurred a loss as a result of a defendant's actions and demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act.
Some examples of civil law are cases about contracts, damage to property, someone getting hurt, family matters (divorce, child support or custody, name changes), renting or leasing, and cases about taking care of people and their personal affairs (such as using a will to transfer property after someone dies or setting up guardianships to take care of people who cannot take care of themselves).
Civil – Contract
Contract cases involve disputes over an agreement between two or more parties.
Consumer/MMPA: A lawsuit brought under the Missouri Merchandising Practices Act, which protects persons who seek, buy, or lease goods or services against false and misleading business practices.
Contract: (1) An agreement between 2 or more people to do or not to do a particular thing; (2) an agreement between 2 or more people that makes, changes, or ends a legal relationship.
Debt: An amount owed by one person or entity to another.
Fraud: Deceiving someone on purpose in a way that financially hurts others.
Misrepresentation: A false or misleading statement about something, usually made with the intent to deceive. A statement that is not supported by the facts.
Foreclosure: A proceeding by a creditor to take back a home or land.
Franchise: A right granted to a person or group to sell a company’s goods or services within a certain territory. Some of today’s popular franchises are McDonald’s and Domino’s Pizza. A franchise is usually contained in a contract.
Insurance: A contract between an insurance company and a person or group which provides for a money payment when a loss, accident, or death occurs.
Landlord/Tenant: A landlord is a business or person who owns a rental unit, and who rents or leases the rental unit to another person, called a tenant.
Non-Competition: A contract that keeps a person or company from working in a place or type of business for a certain amount of time.
Partnership: A type of business where 2 or more persons agree to pool their talent and money and share profits or losses.
Civil – Injury or Damage
Injury or Damage cases are cases claiming that a person, their reputation, or their property was injured or wronged by someone who either did something that he was not supposed to do or failed to do something that he should have done.
Assault: When someone tries or threatens to hurt another person. Can include violence but is different from battery.
Battery: Illegal beating or physical violence or control of a person without their permission. (Compare with assault.)
Construction: Choose this if the main issue in the case is (1) you were injured in connection with a construction accident, or (2) you were injured as the result of poor construction of a building.
Defamation: When one person hurts another person’s character, fame, or reputation by making false statements.
Malpractice: The delivery of poor quality services or care by an accountant (accounting), lawyer (legal), doctor (medical), or other professional, with the result that the client or patient is harmed.
Motor Vehicle Accident: When a person or property is hurt because of an accident involving a car, truck, or other vehicle.
Premises: A lawsuit against the owner of land or the improvements on it, including a building, store, apartment, or other structure, which claims that a person or group of people were hurt or damaged by the condition of the land or improvements.
Product Liability: A lawsuit against the maker of a product which claims that a person or group of people were hurt or damaged by a product that was defective or not suitable for the use it was advertised for. Asbestos/Silica product liability lawsuits are filed on behalf of people who are sick due to exposure to asbestos or silica.
Civil – Employment
Employment cases involve a dispute between an employer and employee over the conditions, terms or termination of employment.
Discrimination: When an employer treats one employee different from another employee because of the person’s color, sex, race, religion, disability, or national origin.
Retaliation: When an employer punishes an employee or former employee by, for example, firing, demoting, or disciplining him/her because he/she opposed or reported discrimination.
Wrongful Termination: When an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law.
Workers’ Compensation: A state-regulated insurance program that pays injured workers’ medical bills and replaces part of their lost wages if they were injured at work or have a work-related illness and their employer has workers’ compensation insurance
Civil – Real Property
Real Property cases involve disputes over the ownership, use, boundaries, or value of land, buildings and anything else attached to the land; also called “real estate.”
Eminent Domain/Condemnation: The right of the state or another government to take private property for public use after giving fair compensation to the owner.
Partition: To divide real property owned by 2 or more people into separate parts.
Quiet Title: A case in which the ownership of real property is in dispute, and the court must decide who owns (or has title to) the property. To "quiet title" is to declare that a certain person is the legal owner of the real property in dispute.
Civil – Related to Criminal Matters
These cases are filed in relation to a criminal case or matter.
Expunction: A request for a court order requiring arrest records and other criminal records to be destroyed or removed from files.
Judgment Nisi: A judgment entered when a defendant in a criminal case is out on bail but fails to appear for trial. A judgment nisi triggers the issuance of a capias (arrest warrant) and it serves as notice of the start of a bond forfeiture proceeding.
Non-Disclosure: A request by a person who was placed on deferred adjudication for a criminal offense and then received a discharge and dismissal. The request is for a court order telling criminal justice agencies that they cannot release to the public criminal history record information about the offense.
Seizure/Forfeiture: A case in which property used in a crime or money gained from a crime is taken and, after a hearing, becomes the property of the state.Writ of Habeas Corpus – Pre-indictment: Used before a person is indicted to bring the person before a judge to decide whether the person is being unlawfully denied his or her freedom. The term comes from Latin.
Copyright ©2015, Randall Hill, Excerpted from chapter 2, "Legal Research for Non-Lawyers"
