10/26/2017. Criminal Law. Definition of crimes. This last point is important because:

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1 Criminal Law Criminal law deals with the most serious kinds of harm that people can cause each other, or society. Although it is true that there are generally two private parties involved in criminal law, these kinds of harms are dealt with as public law because they are also acts against the state and society. Because they are a threat to public order, they concern the whole community. Definition of crimes One of the major aspects of criminal law is the definition of criminal behavior. In general, a crime involves: A bad act (actus reus) Criminal intent (mens rea, or guilty mind. ) Plus, the act must be against the law. This last point is important because: There can be no crime without law (nullum crimen sine lege.) This means that an act cannot be punished unless there is a law against it at the time it is committed. In other words, it is unjust to make an act illegal after it has been committed. Such laws are called ex post facto laws. One of the reasons that we have laws, and that laws are required to be published in some way, is that people need to have notice of what is prohibited. If people don t know what the law is, they won t be able to follow it. Ex post facto laws and secret laws don t give people notice. 1

2 Back to crimes: The major exception to the rule against ex post facto laws, which applies in the Turkish legal system and many others, is that a change in the law which is favorable to the defendant may be applied after the fact. Some crime vocabulary: Murder Assault Battery Theft Rape Fraud Burglary Arson What does it mean to define a crime? An example: Theft ARTICLE 141-(1) Any person who takes another s movable property from its place without the consent of the owner to derive benefit for himself or third parties is punished with imprisonment from one year to three years. (2) All kinds of energy with economic value is also considered movable property. We can break this law down into pieces, or elements: Any person who: 1. takes another s movable property from its place 2. without the consent of the owner 3. to derive benefit for himself or third parties Criminal Procedure Rules about the investigation, prosecution, trial and punishment of crimes. Is guilty of theft 2

3 Some important ideas: Burden of Proof: the state has the burden to prove the defendant is guilty. The defendant does not have to prove he is innocent. Presumption of innocence: we presume the defendant is innocent until he has been proven guilty. Another important protection in Turkish law is that extraordinary tribunals are prohibited. This means that a crime has to be tried in the court that was authorized by law to hear it before the offense was committed. (Turkish Constitution, Article 37.) Aybay, p Criminal Procedure rules also govern such matters as: How evidence must be obtained in order to be admissible at trial. At what stages of the legal process a person has the right to be represented by a lawyer. An important procedural right in common law systems is the right to a trial by jury. Juries Most commonly, a jury consists of twelve, randomly chosen individuals, though there can be fewer people in some jurisdictions. Some civil law countries use something like a jury for certain serious criminal cases as well. Historically, jury verdicts had to be unanimous in criminal cases. (currently, some jurisdictions allow convictions by a majority in less important cases.) If the jury cannot come to a consensus, it is regarded as a hung jury and the matter can be retried before a new jury. 3

4 For example: in Germany There are two kinds of mixed courts in modern German practice. For more serious crimes, the mixed court consists of five judges -two lay and three professional( two-three court ). For less serious crimes, the court consists of three judges -two lay and one professional ( two-one court ). Punishment Purposes of punishment: Fairness: Deterrence Specific (individual) General Retribution Rehabilitation Universal Declaration of Human Rights: Art. 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Francis Pakes, Comparative Criminal Justice (2 nd ed.) p. 125 Imprisonment However, there is little international agreement on what constitutes inhuman or excessive punishment. For example, in Europe, the death penalty has been outlawed because it is considered to be cruel. The US Supreme Court has refused to do so. Pakes, p. 125 Imprisonment is one of the most popular forms of punishment today. It was not always this way. In earlier times criminals were ordered to pay financial compensation to their victims. Later on, corporal and capital punishment were used more often than imprisonment. Pakes, pp

5 The Death Penalty Worldwide Corporal punishment: Physical punishment that involves the deliberate infliction of pain in order to punish a person for a crime. Capital punishment: The death penalty. Countries with the Death Penalty: Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of the Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Gambia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Somalia, South Sudan, Sudan, Syria, Taiwan, Thailand, Trinidad And Tobago, Uganda, United Arab Emirates, United States Of America,* Viet Nam, Yemen, Zimbabwe Amnesty International: *US States with the Death Penalty: 30. States without the death penalty: 20, plus the District of Colombia. The Federal government and US military also retain the death penalty. Death Penalty Info Center: Does it work? Most studies have shown that the death penalty does not deter crime. That is, introducing or abolishing the death penalty does not cause statistically significant changes to serious crime rates. See: John Lamperti, "Does Capital Punishment Deter Murder? A Brief Look at the Evidence," math.dartmouth.edu, Mar t%20edit.htm. Last accessed on May 13, Jeffrey Fagan, "Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment, in Ohio State Journal of Criminal Law; Last accessed on May 13, Francis Pakes, Comparative Criminal Justice, 2nd ed. (Abingdon: Willan Publishing),140 Despite this lack of scientific support, supporters of the death penalty are often convinced by anecdotal evidence of individuals being deterred, or argue that the death penalty must, by its nature, deter some people who would not be deterred by the threat of prison. Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of. Ernest van den Haag, quoted in Death Penalty Curricula for High School. 1 Nov Michigan State University Comm Tech Lab and Death Penalty Information Center. Date accessed: May 14, 2012 < 5

6 Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Ernest van den Haag, quoted in Death Penalty Curricula for High School. 1 Nov Michigan State University Comm Tech Lab and Death Penalty Information Center. Date accessed: May 14, 2012 < And it certainly is the case that the death penalty has an individual deterrent effect, if not a general one. (An executed criminal cannot harm anyone.) But the strongest justification for the death penalty is retribution, not deterrence. For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives. Death Penalty Curricula for High School. 1 Nov Michigan State University Comm Tech Lab and Death Penalty Information Center. Date accessed: May 14, 2012 < Others, however, believe that retribution has no place in a modern justice system. Retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.... The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of a murderer is a similarly disproportionate punishment.... Death Penalty Curricula for High School. 1 Nov Michigan State University Comm Tech Lab and Death Penalty Information Center. Date accessed: May 14, 2012 < 6