In American Jurisprudence, legal matters are divided into two distinct categories: civil and criminal. However, both criminal and civil matters can be heard by courts of competent jurisdiction and, as such, the same judge who presides over a criminal matter may also be presiding over a civil matter at any given moment. Formative aspects of relatively primitive legal codes and common law doctrines were central to the development of the criminal law system employed by the United States, though this system continues o suffer from a lack of clarity in the drafting and application of relevant statutes and theories.
Essentially, much of modern American criminal law is derived from the discussion of how to delineate standards by which negligence could be assessed from standards by which criminal conduct might be determined. For example, great American Jurist Oliver Wendell Holmes Jr. famously once wrote that:
“[If] a man is born hasty and awkward, is always having accidents and hurting…his neighbors…his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect…The courts…decline to take his personal equation into account” (Holmes, 1881).
In so writing, Holmes speaks to the difficulty of enforcing civil justice where misbehavior may be partially excused due to some capacity-based deficiency on the part of the actor. In criminal law, however, this difficulty is rendered all the more challenging insofar as capacity-based excuses for criminal conduct are many. It is for a criminal court judge to determine whether a given criminal actor may be exculpated solely on the basis of a deficient capacity.
Standards by which criminal liability may be assessed are comparably difficult to identify as their roots in antiquated doctrine have seldom been examined. The Model Penal Code, for example, is in conflict with many criminal laws on the books of individual states, which eschew the Model Penal Code standard (Herring, 2012). As such, many criminal matters are decided by the fact-finder, jury or judge, who is in an unusually decisive position to influence the outcome of a criminal matter, as much depends upon the manner in which various laws and forms of conduct are interpreted. Indeed, courts often determine that certain violations of law with which defendants are charged cannot proceed to trial due to the vagueness of the statute according to which the criminal actor is charged. The Model Penal Code also imposes minimum standards of culpability, without the establishment of which it is difficult to obtain a conviction, despite that one court may find these elements established where another court would not.
Generally speaking, criminal courts in the United States are presided over by many of the same judges and juries who might otherwise be sitting in judgment of a civil matter. Due to the lack of attention to detail in the cultivation of model penal rules and the like, the culpability standards by which guilt or innocence may be assessed are woefully inadequate in light of their overwhelmingly important purpose. It is for individual courts to often decide matters of criminal liability where no such matter has ever presented itself to any court of competent jurisdiction. For this reason, criminal courts in the United States are vested with remarkable discretionary authority, empowered to literally make law, as opposed to merely interpreting it, in the course of deciding a criminal matter. While precedent does play a role in this process, it does not play quite the same forceful role as it does with regard to civil matters in the United States. Indeed, if it may be said that any “precedent” related initiative plays a substantial role in criminal courts in the United States, it would be precedent stemming from antiquated notions and doctrines.
Herring, J. (2012). Criminal Law: Texts, cases and materials. Oxford: Oxford University Press, 2012.
Wendell Holmes, O. (1881). The Common law. Boston: Little, Brown and Company, 1881.