Keith Mack
Criminal law is a complex and ever-changing field that deals with the protection of individual interests and the maintenance of group survival. While it generally involves crimes against others or society, acts against oneself, such as suicide, are also considered criminal. The criminal law of England and the United States is rooted in traditional English common law, which is defined by judges' legal opinions rather than statutes. Common law crimes are those originally defined by judges. However, common law no longer applies to federal crimes in the United States due to a Supreme Court decision in 1812. This has resulted in variations in the application of common law crimes across different states. The punishment for committing a crime can vary based on factors such as the severity of the crime, the defendant's criminal history, and other factors, with common punishments including fines, probation, incarceration, and death in the most serious cases.
| Characteristics | Values |
|---|---|
| Definition | Common law crimes are crimes that were originally defined by judges |
| Applicability | Common law no longer applies to federal crimes in the US |
| Variations | Common law crimes vary at the state level in the US |
| Examples | Murder, assault, battery, theft, arson, drug offences, fraud, rape, sexual abuse, suicide, etc. |
| Punishment | Fines, probation, incarceration, and in serious cases, death |
| Defences | Intoxication, insanity, failure of proof, mistake, etc. |
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What You'll Learn
Common law vs. federal law
Common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. A common law crime is a crime that was originally defined by judges. Common law no longer applies to federal crimes because of the U.S. Supreme Court's decision in United States v. Hudson and Goodwin in 1812. However, it is worth noting that most common law is found at the state level, and there are a limited number of federal common laws.
Federal common law is a term used to describe common law developed by federal courts instead of the courts of individual states. There are several areas where federal common law continues to govern, including admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. Federal common law is valid only when Congress has not repealed the common law with a statute.
In the United States, there are two systems of criminal law to which a person may be subject: state criminal law and federal law. The federal government and each state have their own criminal codes, which define specific crimes and the different degrees of each crime. The specific penalties for each degree of crime vary from jurisdiction to jurisdiction. Federal criminal law stands alone from each individual state's criminal law.
The criminal law of the United States derives from traditional English common law and has been adapted to American conditions. In most U.S. states, the common law of crimes has been repealed by legislation, meaning no person may be tried for any offense that is not specified in the statutory law of the state. However, some states continue to expressly retain a role for common law crimes, including Alabama, Connecticut, Florida, Idaho, Maryland, Michigan, and North Carolina, among others.
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Common law crime definitions
Common law is law that has been developed by judges through legal opinions, rather than via statutes adopted through the legislative process or regulations issued by the executive branch. A common law crime is therefore a crime that was originally defined by judges. Common law crimes are distinct from statutory crimes, which are defined by legislation.
Common law crimes are recognised in some US states, including Alabama, Connecticut, the District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, North Dakota, Rhode Island, and South Carolina. In these states, the elements of many crimes are defined mostly or entirely by common law. For example, in Michigan, the penalties for murder are laid out in statute, but the actual elements of murder are set out in case law.
In Canada, the Criminal Code enacted in 1953 abolished all common law offences except contempt of court. In England and Wales, common law offences are being phased out and replaced with offences defined by statute. In New Zealand, the Criminal Code Act of 1893 abolished common law offences, except for contempt of court and offences tried by courts martial.
Common law crimes are distinct from inchoate crimes, which are crimes that are not yet complete but are "in the process of maturing". Common law crimes are also distinct from strict liability offences, which do not require proof of mens rea, or "guilty mind".
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Common law in different states
In the United States, common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. Common law crimes are thus crimes that were originally defined by judges.
Common law no longer applies to federal crimes due to the U.S. Supreme Court's decision in United States v. Hudson and Goodwin, 11 U.S. 32 (1812). However, the acceptance of common law crimes varies at the state level. The following states expressly retain a role for common law crimes: Alabama, Connecticut, the District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, North Dakota, Rhode Island, and South Carolina.
It is important to note that the recognition of common law marriages also varies across different states. Common law marriage, also known as sui juris marriage, informal marriage, or marriage by habit and repute, is a form of irregular marriage that survives only in a few states. As of 2022, common-law marriages are recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Some states, such as Utah, South Carolina, and New Hampshire, have limited recognition of common-law marriage.
The requirements to contract a valid common law marriage differ between jurisdictions. For example, in Texas, couples can file a legal "Declaration of Informal Marriage," which is a legally binding document. This form must be completed by both marriage partners and sworn or affirmed in the presence of the County Clerk. Other states may have different processes for recognizing common law marriages.
In terms of criminal law, the United States has a manifold system of laws and practices that connects crimes and consequences. Generally, there are two systems of criminal law: state criminal law and federal law. The specific penalties for each degree of crime vary from jurisdiction to jurisdiction, and federal criminal law stands alone from each individual state's criminal law.
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Common law and intent
Common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. A common law crime is a crime that was originally defined by judges. Common law no longer applies to federal crimes in the United States due to the Supreme Court's decision in United States v. Hudson and Goodwin in 1812. However, some US states still expressly retain a role for common law crimes.
Intent, or 'mens rea' in Latin, is one of two elements that must be proven in order to secure a conviction for a common law crime, the other being the actual act, or 'actus reus'. Mens rea can be translated as 'guilty mind', indicating that the defendant must have had a 'guilty intent' when committing the actus reus for criminal liability to attach. The specific mens rea required differs for each crime. For example, the mens rea for murder is 'malice aforethought', while the mens rea for theft may be 'animus furandi', or 'the intention to steal'.
Mens rea is traditionally divided into four categories: general intent, specific intent, recklessness, and criminal negligence. General intent crimes require that the defendant intended to commit an illegal act, even if they did not know the act was illegal. Specific intent refers to the purpose behind committing the crime. Recklessness and negligence are matters of degree, with recklessness being the higher level of guilt. Some crimes that can be committed through recklessness or negligence include involuntary manslaughter, criminally negligent homicide, and reckless endangerment.
The intent of the offender is one of the factors that determine the degree of a crime, which in turn determines the severity of the punishment. For example, first-degree murder implies intent and premeditation, and is therefore punished more severely than second-degree murder, which does not require premeditation.
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Common law and insanity
Common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. A common law crime is a crime that was originally defined by judges. Common law no longer applies to federal crimes in the United States due to the U.S. Supreme Court's decision in United States v. Hudson and Goodwin in 1812. However, the acceptance of common law crimes varies at the state level.
The concept of the defence of insanity has existed since ancient Greece and Rome. During the Roman and Greek eras, insanity was used as a way to help provide a defence for those with mental disorders. In English common law, Edward II declared that a person was insane if their mental capacity was no more than that of a "wild beast" in the sense of a dumb animal. The first complete transcript of an insanity trial dates back to 1724. In colonial America, a delusional Dorothy Talbye was hanged in 1638 for murdering her daughter, as Massachusetts's common law made no distinction between insanity (or mental illness) and criminal behaviour.
The defence of insanity takes different forms in different jurisdictions, and there are differences between legal systems regarding availability, definition, and burden of proof, as well as the role of judges, juries, and medical experts. In jurisdictions where jury trials exist, it is common for the jury to decide on the sanity of the accused. An important distinction to make is the difference between competency and criminal responsibility. The issue of competency deals with whether a defendant is able to adequately assist their attorney in preparing a defence, make informed decisions about trial strategy, and whether to plead guilty, accept a plea agreement, or plead not guilty. This is addressed in UK law as "fitness to plead". Competency deals with the defendant's present condition, while criminal responsibility addresses their condition at the time the crime was committed.
There are four standards for deciding whether a criminal defendant has established an insanity defence: the M'Naghten Rule test, the irresistible impulse test, the Model Penal Code test, and the Durham rule. Under the M'Naghten Rule test, the criminal defendant must either not understand what they did or be unable to distinguish right from wrong. This test relies on the notion that defendants may be diseased to the extent that they are incapable of understanding their actions. The irresistible impulse test, used in some states in combination with the M'Naghten test, determines whether a defendant was unable to control or resist their impulses due to a mental disease or defect, leading to a criminal act. If so, the defendant is not guilty by reason of insanity. The Model Penal Code test, still used in many states, applies when a defendant could not understand the criminality of their actions due to a diagnosed mental disorder or was unable to "act within the confines of the law". The Durham rule, used only in New Hampshire, was deemed too broad by other states and jurisdictions.
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Frequently asked questions
A common law crime is a crime that was originally defined by judges. Common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.
Murder is a common law crime. Public intoxication and jaywalking are not crimes that require a specific mental state, and so are not common law crimes.
Most US states have repealed common law crimes through legislation. Common law crimes are expressly retained at the state level in Alabama, Connecticut, the District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, North Dakota, Rhode Island, and South Carolina.
