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Understanding Criminal Law

Updated on September 8, 2009

Of all the activities of the courts, the most familiar to the general public is the exercise of criminal jurisdiction. In most legal systems of the Western world, criminal law takes the form of legislatively prescribed lists of crimes to which are attached precise and detailed definitions; this specification is coupled with the principle that no conduct is criminal unless it falls within one of those definitions. The advantage of such a system is that it prevents criminal law from being extended in moments of popular excitement without sufficient deliberation. On the other hand, a person who invents a new sort of crime, or sometimes a new way of committing an old one, may escape conviction. The general feeling seems to be that this is a less serious risk than that of vagueness and uncertainty in the criminal law.

Two Systems

Two main systems of criminal procedure are in use. One is derived largely from the work of the medieval canon lawyers, who were great legal experts of their age. In the inquisitorial system, which prevails in civil-law countries, though with substantial variations from country to country, the court or its staff takes general charge of a criminal case. It is part of the judge's duty to gather evidence himself to supplement that produced by the prosecution and the defense. Evidence is entirely or largely committed to writing in the form of depositions and answers to interrogatories. The final stage of the proceeding is the perusal of all this written material by the judge, who must decide, at the end, whether he is convinced beyond doubt of the guilt of the accused.

The other system of criminal procedure, the one used in England, the United States, and other common law countries, is not inquisitorial but accusatory, or, adversary, as it is more often described. Here the prosecution and the defense are the moving parties throughout the proceedings, and they produce such evidence as they deem fit in the course of a contest between accuser and accused. The role of the judge is essentially that of an umpire, to see that the contest is carried on according to the rules. But •it is the jury, not the judge, that must be convinced by the parties to the prosecution. All the proceedings are conducted orally, and all evidence is produced by the witnesses themselves in the presence of the jury. The modern trend in England is to make much less use of jury trials. Even so, the general course of an English criminal trial remains much the same as if a jury were present. In the United States, persons accused of serious offenses are guaranteed the right of trial by jury by the 6th Amendment to the Constitution and similar provisions in the state constitutions.

By the 1970's, criminal law was faced with grave problems that had hardly been raised a century earlier. American criminal courts, particularly, gravely overburdened and congested, have been unable to keep up with their crowded dockets even though they have employed assembly-line procedures in the disposition of petty criminal cases. Juvenile delinquency has become a serious mass problem, not only in the West but also in the Soviet Union, and has provoked much experimentation with special treatment of young offenders. Adult offenders, too, present an urgent field of interest to various social scientists. The opinion is growing that a stated number of years in prison is not the most promising way to deal with a convicted criminal.


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    • Julianne Burkett profile image


      5 years ago from Dallas, TX

      Very interesting article, thanks!


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