Let's talk about substantive criminal law vs. criminal procedure.
Substantive criminal law talks about what law is actually being enforced?
How does that law break down into its elements?
The focus is on the defendant's acts in this part of the law - all right?
In a criminal case.
The state is going to have to prove each element.
The state is going to have to show actus reus - a little Latin there.
An act - the defendant actually did something that violated the law.
You might remember the case of the "cannibal cop," where the police officer was talking
about wanting to kill and eat women, and he was prosecuted unsuccessfully for that - and
people were shocked - and his behavior was shocking - what he said he wanted to do was
certainly shocking.
But the problem was that there wasn't an act.
He didn't actually do anything to bring this plan to fruition.
And his claim was this was just some twisted imagination of his.
You have to have an act, okay?
Causation - that act has to cause a harm.
We'll talk about this more later, but suffice to say for now, the act has to actually cause
the harm.
Mens rea is the thought process that goes behind the act, so we're not prosecuting people
for accidents.
Okay?
And there are levels of mens rea: intentional, knowing, reckless, criminal negligence, okay?
But, there has to be some proof by the state of what the mens rea was behind that act.
And there has to be concurrence of the act and the intent; in other words, they have
to happen at the same time.
So the example here is, let's say that you hate someone, you want to kill that person,
you're driving over to that person's house with a gun, so that you can shoot the person,
and lo and behold, he comes running out in the street, and you run him over with your
car accidentally.
And you get charged with, or they're thinking about charging you with homicide.
You're not guilty of it.
At least you're not guilty of it at the intentional homicide level, that you would be if you would've
made it over there and shot him.
Why?
Because there was no concurrence between the act and the intent.
They didn't happen at the same time.
Okay?
Notice.
Now this one says that the law has to be written down.
We have to provide notice to people of what's against the law in order for them to be prosecuted.
Where this has been coming into play recently is with synthetic drugs.
You may have heard of "bath salts"?
MDPV, for example?
Well what happens there is, people invent these new drugs.
They're brand new.
They're not on the books because they were just invented.
And then they sell these drugs, and people ingest them, and horrible things happen, and
it's all terrible, but we can't prosecute someone for something that's not against the
law.
Do you understand?That's not written in the books.
That they haven't received notice for.
So it's been a real problem for police, and for prosecutors to try to control these synthetic
drugs.
And that's notice, okay?
And I've got the Latin phrase indicated as well.
And then finally, in the topic area of substantive criminal law, we have defenses.
So, defenses fall into various categories, which we'll talk about more in the future,
but justification, excuses, disability are the major categories, okay?
That's substantive criminal law.
Let's shift over now and talk about criminal procedure.
Criminal procedure is entirely different.
Criminal procedure is how that law is enforced.
We're no longer interested in breaking down a law.
Now we're talking about how are we enforcing that law?
What are we doing to take people's confessions, to get evidence?
Okay?
To do search and seizure of someone's drug grow that they have growing in their garage,
for example?
Okay?
So here, the focus is on the government's acts, not on the defendant's acts.
We're looking at the legal standards that the government is held to for detecting, investigating
and prosecuting crime.
All right?
Interrogation, search and seizure, all of that is fodder for argument in the world of
criminal procedure.
So that, in a nutshell, is a comparison between substantive criminal law and criminal procedure.