As you can see, laws can punish acts that are moral or immoral. But keep in mind that not all immoral acts are punished by laws. Legislatures don’t want to try to control every facet of human life through regulation. For example, most people agree that sleeping with your best friend’s spouse is immoral, yet doing so is completely legal.
Identifying Elements of a Criminal Law
The U.S. justice system includes many types of law, such as property law, contract law, tort law, and administrative law. These examples all fall under the broad heading of civil law. Civil law generally governs the affairs between private parties. For example, civil law decides the fault in a car accident and interprets the terms of a contract in a dispute. For a law to be considered criminal, on the other hand, it must contain certain elements and characteristics, which I explain in this section.
Distinguishing civil from criminal law
Most civil and criminal laws alike are created to redress wrongs or to compel good behavior. However, civil law and criminal law have unique characteristics that distinguish them from each other. For example:
A civil lawsuit is almost always between private parties, but only the government can bring a criminal proceeding.
Only in criminal law can a person lose his freedom and be sent to jail or prison. When a plaintiff (the person bringing the case) wins a civil lawsuit, he typically gets an award of money, but he can’t put the other party (the person defending the suit, otherwise known as the defendant) in jail.
In criminal law, the defendant has certain constitutional rights that a defendant in a civil lawsuit doesn’t have. The following rights are some of the more important constitutional rights a defendant has in a criminal case:The right to have a jury decide guiltThe right to confront witnesses and cross-examine themThe right to have a lawyer represent the defendantThe right to “remain silent” without that silence being used against the defendant in court (In other words, no one can force the defendant to take the witness stand.)The right to have a speedy trialThe right to be found guilty only by a standard of “beyond a reasonable doubt”
Defining felonies and misdemeanors
A memorable example of how criminal and civil laws work in the real world is the O. J. Simpson murder case. O.J. Simpson was a Heisman Trophy winner and member of the Pro Football Hall of Fame who was arrested in 1994 for killing his ex-wife Nicole Brown Simpson and Ron Goldman. In 1995, a jury in his criminal murder trial found him not guilty. But the matter wasn’t finished. The families of Ron Goldman and Nicole Brown Simpson filed a civil suit against Simpson for causing the deaths. As a result of that civil suit, another jury found Simpson liable (not guilty because a jury can only find guilt in a criminal case) for causing the deaths of Ron Goldman and Nicole Brown Simpson. Because the verdict came from a civil suit, Simpson couldn’t be put in prison. Rather, the jury ordered him to pay over $30 million to the family of Ron Goldman and to Nicole Brown Simpson’s two children.
In the civil trial (unlike in the criminal trial), Ron Goldman’s family (the plaintiffs) forced Simpson to testify, and they didn’t have to prove “beyond a reasonable doubt” that Simpson committed the murders. Rather, the plaintiffs had to prove only that “more likely than not” (in other words, that there was at least a 51 percent chance) Simpson committed the murders.
Criminal laws are categorized according to the punishments they impose. Generally, a criminal law may be either a felony or a misdemeanor. The difference between the two is as follows:
A misdemeanor is a minor offense, and its maximum sentence usually can’t exceed one year. However, if someone is convicted of three misdemeanors, he can conceivably serve up to three years in jail. Petty larceny, such as shoplifting some cigarettes from a local convenience store, is usually a misdemeanor, and the punishment may be very light.
A felony is the more serious offense, and someone who commits a felony can be punished with more than a year in jail or prison. Theft of an expensive item, such as a Macbook Pro laptop computer, can rise to the level of a felony and be subject to serious punishment.
I describe the main elements or requirements of a criminal law in the following sections. If an act doesn’t include these elements (and doesn’t include the possibility of jail time as punishment), it probably isn’t considered a crime. (But there are always exceptions, which is why people have to hire lawyers.)
Requiring a physical act
Reflexive motions, such as a sneeze that accidentally causes a person to discharge a gun
Acts that occur during sleep, such as sleepwalking
Acts that occur under the effects of hypnosis
Acts committed under orders and at gunpoint
In most cases, the failure to act can’t constitute a crime. For example, refusing to jump into a river and save a drowning child doesn’t constitute homicide.
However, in some limited circumstances, when a legal duty to act is involved, the failure to act can constitute a crime. A great example is the legal duty of all citizens to pay their taxes. Failure to act — to write a check to the government, for example — can result in a criminal prosecution. Similarly, parents have an obligation to care for their children. The failure to feed or care for kids may constitute the crime of child neglect.
Having a guilty mind
Along with requiring a physical act, a crime also requires a culpable mental state. This phrase is law-school talk that means the act wasn’t an accident and the offender had some moral responsibility. For example, a person can be considered morally culpable if he planned or intended to commit the criminal act. Aside from intent, however, most states recognize