第5章 英美刑法篇
第一节
One commonly used justification for criminalizing behavior is that it involves the infliction of harm.By criminalizing the behavior，society both records its condemnation of the behavior，and also seeks to prevent or at least minimize the occurrences of such behavior through the use or threatened use of punishment upon infringement.According to this，“harm” thus becomes one of the defining characteristics of crime.
“Harm” is not limited to physical harm or property damage，but extends to potential harms to a variety of other interests that are thought to require protection in order to build or maintain a better and more just society.This includes，for example，the maintenance of public health and safety across a wide spectrum of activities，such as traffic regulation and animal licensing，the prevention of obscenity，and the continued existence and effective operation of the government and courts themselves.
This view of the criminal law as a means to an end—the prevention of harmful behavior in its many manifestations—is known as an “instrumentalist” view.It can be found，for example，in the well-known views of the legal and political philosopher John Stuart Mill.Writing in the mid-nineteenth century，Mill advocated the adoption of a “utilitarian” ethic towards the criminal law，according to which the coercive powers of the state should (or could) only be invoked to prevent or minimize the occurrence of behavior involving “harm to others” (but never to control non-harmful behavior or behavior harmful only to the actual actor).According to a utilitarian outlook，the criminal law can only be justified on the basis that it is a means of “maximizing happiness.”
This recognizes that the mere fact ‘harm’may occur is not in itself reason enough for criminalizing the conduct in question.Many other factors come into play.The possibility of harm may，for example，be remote.Or it may not be of a type that merits prevention.Or it may be relatively trivial compared to the potential effect of a criminal conviction.Or it may simply be too difficult effectively to enforce any prohibition.
【来源：Michael Jackson，Criminal Law in Hong Kong，Hong Kong University Press，2003，p.13】
1.What does “infringement” mean in Paragraph 1？( )
A.breach of contracts
B.criminalization of behavior
C.violation of laws
D.invasion of intellectual property rights
2.According to Paragraph 2，which of the following does not constitute“harm”？( )
A.physical injury
B.interference of the operation of the government or courts
C.indecent behavior
D.personal hygiene ignorance
3.Pursuant to Paragraph 3，which of the following is a CORRECT statement concerning the “utilitarian” viewpoint？( )
A.The coercive powers of the state can be invoked to eliminate the occurrence of all harm-involving conduct.
B.The state powers can be used to restrain behavior that is not harmful.
C.The criminal law should be applied to promote the greatest happiness for the greatest number.
D.The harmful behavior upon the actor himself/herself is also within the power spectrum of the state.
4.What is the main idea of the last paragraph？( )
A.The occurrence of “harm” is sufficient to criminalize a conduct.
B.When deciding to criminalize a conduct，the possibility of harm should also be considered.
C.The fact that conduct is relatively trivial compared to the potential effect of a criminal conviction is a factor that comes into play.
D.In order to criminalize an unlawful behavior，not only the occurrence of “harm” but other elements should also be taken into consideration.
第二节
Mens rea is the mental state expressly or impliedly referred to in the definition of the crime in question.As with the actus reus (criminal act)，the mens rea will，therefore，vary from crime to crime.The starting point when determining the mens rea for a crime is the definition of that crime.Thus，for example，in the offence of murder (defined as the unlawful killing of a human being by a human being during the Queen's Peace with malice aforethought)，the mens rea is malice aforethought.
The crime of murder requires proof of only one element of mens rea，but some offences require proof of more than one element of mens rea.For example，theft (defined as the dishonest appropriation of property belonging to another with the intention permanently to deprive) requires proof of both dishonesty and intention permanently to deprive.
Sometimes，a mens rea term is not included in the definition of the crime but this does not necessarily mean that mens rea is not required；it may mean that the mens rea is implied and has been left to the courts to define.For example，the offence under s.47 of the Offences Against the Person Act 1861 of assault occasioning actual bodily harm contains no mens rea term in its definition.However，at common law，the mens rea has been held to be the same as that for the offence of assault.
In some offences，the mens rea does not correspond with the actus reus.For example，in the offence of unlawful and malicious wounding contrary to s.20 of the Offences Against the Person Act 1861，the actus reus involves wounding，whereas the mens rea is defined as “maliciously，”which has been interpreted by case law to mean with intention or recklessness as to whether some harm might occur.In this example，the requisite mens rea (maliciously) falls short of what is required for commission of the actus reus (wounding).In some offences，known as crimes of ulterior intent，the mens rea goes beyond that which is required for the actus reus.For example，in the offence of unlawful and malicious wounding with intention to cause grievous bodily harm contrary to s.18 of the Offences Against the Person Act 1861，the actus reus involves wounding whereas the mens rea requires proof of an intention to cause grievous bodily harm，rather than intention merely to wound.
【来源：Christina Mc Alhone and Natalie Wortley，Criminal Law—the Fundamentals，Thomson Reuters Limited，2013，3rd edition，pp.50-51】
1.According to the first paragraph，the mens rea for the offence of murder is.( )
A.intention to dishonestly deprive somebody of something
B.intention to kill or to cause grievous bodily harm
C.intention to assault somebody maliciously
D.intention to take an other's personal property by using force
2.What does “appropriation” in Paragraph 2 mean？( )
A.proper
B.the act of making another's property to one's own
C.prescribing a particular use for particular money
D.the act of setting land aside for a particular purpose
3.According to the last paragraph，the mens rea for the offence of unlawful and malicious wounding under s.18 of the 1861 Act is.( )
A.intention to negligently cause bodily harm
B.intention to wound the body
C.intention to cause minor bodily harm
D.intention to incur heavily bodily injury
4.Based on the text，which of the following statements is TRUE？( )
A.Mens rea is the intention part of an offence.
B.All offences require proof of only one element of mens rea.
C.Where a mens rea term is not expressly provided in the definition of a crime，the mens rea is thus not required.
D.The mens rea always accords with the actus reus of a particular crime.
第三节
The crime of conspiracy consists of an agreement to accomplish an unlawful purpose.Conspiracy is punishable separately from the substantive offense contemplated or committed.The rationale for this treatment is that the law of criminal conspiracy serves purposes distinct from those involved in the punishment of substantive crimes.Accordingly，the criminalization of conspiracy prevents criminal activity before it occurs and protects society from the dangers inherent in partnerships in crime.Group criminality is said to increase the likelihood that crime will be committed.Furthermore，a group of conspirators，through an efficient division of labor，may be able to achieve more sophisticated and harmful objects than an individual could otherwise achieve.Group activity may also prepare individuals to commit crimes on a regular basis.Critics have argued that these justifications are either overstated or can be adequately served by the law of attempt.
In order to show the existence of an agreement involving each defendant，the prosecution must prove：(1) knowledge of the main object of the conspiracy；(2) knowledge of the scope of the conspiracy，or at a minimum knowledge of the involvement of another；and (3) specific intent to join the conspiracy and commit the object offense.
Proving these elements can present substantial problems：because of the secretive nature of the crime，there is usually little documentary evidence indicating the existence of a conspiracy.However，most evidentiary problems have been resolved in favor of the prosecution.Due to the lack of documentary evidence，proof will normally be of three basic types：(1) circumstantial evidence，(2) the hearsay testimony of co-conspirators，and (3) evidence of out-of-court declarations or acts of a co-conspirator or the defendant himself.This evidence may give rise to reasonable inferences from which a jury could find the existence of an agreement.Conspiracy convictions are routinely based solely upon such inferences and presumptions，a fact which has troubled many commentators—but few courts.These commentators fear that，by piling inference upon inference，defendants may become victims of guilt by association.Furthermore，the acts of one conspirator may be imputed to a defendant with whom the conspirator has associated because of the tendency to believe that “birds of a feather flock together.” In response，defenders of the conspiracy laws argue that less restrictive evidentiary standards are necessary because of the secretive nature of conspiracy and because society's general interest in preventing crime is greater than its specific interest in avoiding erroneous punishment for the substantive offense.
【来源：Jerry N.Jones，Criminal Law，62 Denv.U.L.Rev.，1985，pp.126-128】
1.According to the first paragraph，which of the following is NOT one of the justifications for the crime of conspiracy？( )
A.The criminalization of conspiracy can stop the criminal activity in advance of actual occurrence.
B.It can help to safeguard the society against the dangers caused by a gang crime.
C.A group crime is likely to diminish the possibility that crime will be committed.
D.The crime committed by a group of conspirators is said to be more complicated and dangerous than that of an individual.
2.According to the passage，the prosecution's burden of proof to demonstrate the existence of a defendant's conspiratorial agreement does not include.( )
A.the clear intentite to participate in the conspiracy and commit the crime
B.the specific intent to commit the crime independently
C.the knowledge of the object of the conspiracy
D.the knowledge of the scope of the conspiracy or its involvement
3.What does “hearsay” in Paragraph 3 mean？( )
A.a documentary evidence provided by the witness
B.an oral evidence given by the witness
C.the evidence the prosecutor heard said by the witness
D.a testimony given by the witness based on what he was told
4.What can we infer from the last paragraph？( )
A.Most of courts are concerned with the fact that conspiracy convictions are generally based solely upon inferences and presumptions.
B.Actually，the evidentiary problems concerning the existence of conspiracy are not substantial problems to the prosecution.
C.The jury has to be given specific facts in order to find the existence of an agreement.
D.The defenders of the conspiracy laws share the same thought with commentators on the fear that the defendants may be victims of guilt by association.
第四节
American criminal law is codified in fifty-two criminal codes.The federal criminal code overlays the codes of each of the fifty states and the District of Columbia.Under the U.S.Constitution，the power to impose criminal liability is reserved primarily to the states，with federal authority limited to the prohibition and punishment of those unusual crimes specially related to federal interests (such as crimes committed on property of exclusive federal jurisdiction such as military bases，crimes against certain federal officers，and crimes that involve conduct in more than one state that is difficult for a single state to effectively prosecute，such as drug and organized crime offenses).The vast bulk of most crimes and essentially all “street” crimes—homicide，rape，robbery，assault，and theft—fall under jurisdiction of one of the fifty state criminal codes or the code of the District of Columbia.
There is much diversity among these fifty-two criminal codes and，therefore，it is often difficult to state “the” American rule on any point of criminal law.But there also are many similarities among the codes，in large part due to the influence of the American Law Institute's Model Penal Code.Promulgated in 1962，the Code prompted a wave of state code reforms in the 1960's and 1970's，each influenced to some extent by the Model Code.Some of the Model Penal Code provisions have not been widely accepted.For example，while the Model Penal Code generally rejects the common law's “felony murder” rule，which in its broadest form holds all killings in the course of a felony to be murder，most states have retained the rule.Similarly，a majority of states have rejected the Model Penal Code's innovation in prescribing the same punishment for inchoate offenses，such as attempt，and consummated offenses.
Nonetheless，the Model Penal Code，more than any other code，is the closest thing to being an American criminal code.The federal criminal code is too unsystematic and incomplete in theory and too irrelevant in practice to function as a national code.Where states have not followed the Model Code，the divergences locate points of controversy that often continue today.And the Code and its proposals have been the intellectual focus of much American criminal law scholarship since the Code's promulgation.
【来源：Paul H.Robinson & Markus Dirk Dubber，An Introduction to the Model Penal Code，March 12，1999.
1.What does “felony” mean according to the text?（ ）
A.a breach of moral or social code
B.the deliberate violation of a law or standard
C.a crime for which the punishment in federal law may be death or imprisonment for more than one year
D.an act of committing crimes
2.Which of the following crimes is prosecuted under jurisdiction of state criminal codes according to the text?（ ）
A.crimes against federal officers
B.crimes related with cross-state offences such as organized crimes
C.crimes against the federal government
D.some street crimes such as rape and assault
3.Which of the following statements about the Model Penal Code is TRUE?（ ）
A.The Model Penal Code pushed American states to reform their codes.
B.The Model Penal Code welcomes the idea of “felony murder” rule.
C.All the provisions in the Model Penal Code are adopted as state criminal law.
D.The Model Penal Code does not comply with the state rules that the attempted or consummated offences shall be prosecuted under the same punishment.
4.Which of the following statements is FALSE according to the text?（ ）
A.There are some rules and principles provided in the Model Penal Code that are different from the state laws.
B.The U.S.Constitution provides that the authority to impose criminal liability primarily goes to the state.
C.The Model Penal Code is often the research focus of American criminal law scholarship.
D.There are no strict lines between the federal regulation and state regulation over the crimes.
第五节
Criminal law involves prosecution by the government of a person for an act that has been classified as a crime.Civil cases，on the other hand，involve individuals and organizations seeking to resolve legal disputes.In a criminal case，the state，through a prosecutor，initiates the suit，while in a civil case the victim brings the suit.Persons convicted of a crime may be incarcerated，fined，or both.However，persons found liable in a civil case may only have to give up property or pay money，but are not incarcerated.
A crime is any act or omission (of an act) in violation of a public law forbidding or commanding it.Though there are some common law crimes，most crimes in the United States are established by local，state，and federal governments.Criminal laws vary significantly from state to state.There is，however，a Model Penal Code (MPC) which serves as a good starting place to gain an understanding of the basic structure of criminal liability.
Crimes include both felonies (more serious offenses—like murder or rape) and misdemeanors (less serious offenses—like petty theft or jaywalking).Felonies are usually crimes punishable by imprisonment of a year or more，while misdemeanors are crimes punishable by less than a year.However，no act is a crime if it has not been previously established as such either by statute or common law.Recently，the list of Federal crimes dealing with activities extending beyond state boundaries or having special impact on federal operations，has grown.
All statutes describing criminal behavior can be broken down into their various elements.Most crimes (with the exception of strict-liability crimes) consist of two elements：an act，or “actus reus,” and a mental state，or “mens rea.”Prosecutors have to prove each and every element of the crime to yield a conviction.Furthermore，the prosecutor must persuade the jury or judge “beyond a reasonable doubt” of every fact necessary to constitute the crime charged.In civil cases，the plaintiff needs to show a defendant is liable only by a “preponderance of the evidence,” or more than 50%.
【来源：
1.What does “incarcerate” mean according to Paragraph 1?（ ）
A.to put into prison
B.to punish by paying a large sum of money
C.to give the property you have already had
D.to sentence by capital sentence
2.Which of the following statements about the descriptions of crime is WRONG?（ ）
A.A crime is punished by the federal and state laws.
B.A crime is an act or an omission violating the public law.
C.Crimes can be classified in to both felonies and misdemeanors.
D.Most crimes have two elements：an act and a mental state.
3.What does “no act is a crime if it has not been previously established as such either by statute or common law” mean in Paragraph 3 according to the text?（ ）
A.any act is a crime if it meets the two elements.
B.any act is not a crime if it is not established by the prosecutors.
C.an act is a crime if it is established by the statues or the common law.
D.an act is not a crime if it is not punished by imprisonment.
4.Which of the following statements is TRUE according to the text?（ ）
A.Civil cases and criminal cases share the rules and principles regarding to resolving the disputes.
B.In the U.S.，criminal laws in different states vary a lot，but share the basic structure of criminal liability provided in the Model Penal Code.
C.All the crimes should have the two elements if they are to be charged with liability.
D.The list of crimes under the federal jurisdiction have been narrowed down to better protect the federal interests.
第六节
To begin with，not all homicides are crimes.Homicides include all killings of humans.Many homicides，such as murder and manslaughter，violate criminal laws.Others，such as a killing committed in justified self-defense，are not criminal.Illegal killings range from manslaughter to murder，with multiple degrees of each representing the gravity of the crime.
First degree murder is the most serious criminal homicide.Typically，first degree murder is both intentional and premeditated.Premeditated can mean anything from a long time plan to kill the victim，to a shorter term plan.The intent of the accused murderer does not need to be focused on the actual victim.If someone planned on killing one victim，but by accident kills someone else，the murder is still intentional and premeditated meaning a first degree murder charge.
When there is a lack of premeditation but the killer intended to kill for example，in homicides commonly described as occurring “in the heat of passion”，the homicide may draw second degree murder charges or perhaps voluntary manslaughter charges，depending on the state.
Manslaughter generally means an illegal killing that falls short of murder.The lowest form of manslaughter is involuntary manslaughter.This means that the perpetrator did not intend to kill anyone，but still killed the victim through behavior that was either criminally negligent or reckless.One common example is a DUI (Driving under the influence) accident which kills someone.Someone driving drunk is behaving in a criminally reckless manner，even if they had no intent to kill anyone.
Voluntary manslaughter usually means that the offender did not have a prior intent to kill such as when the homicide occurs “in the heat of passion” and without forethought.Depending on the state，this crime may fall under a variant of murder charges，instead of manslaughter.
Some homicides are not illegal.Criminal laws carve out exceptions for some killings which would otherwise fall under criminal laws against manslaughter or murder.These are referred to as “justified homicide”.One primary example is a killing in justified self-defense or defense of someone else.Such a homicide is deemed justified if the situation called for self-defense and state law allows lethal force in that type of situation.Most state laws allow justified homicide to defend oneself or another from credible threat of serious crimes such as rape，armed robbery and murder.
No matter where a homicide falls on the criminal spectrum，it may also bring a civil lawsuit for wrongful death.In the case of a homicide，the family of the victim may sue the alleged perpetrator to collect damages for that person causing the death of their loved one.While wrongful death lawsuits offer monetary results rather than criminal punishment，they also have a much lower standard of proof than the criminal standard of guilt beyond a reasonable doubt.
【来源：
1.What does “homicide” mean according to the text?（ ）
A.the deliberate and systematic destruction of a racial group
B.a person who wants to kill another
C.the killing of one human being by another
D.an intentional killing of someone
2.Which of the following behaviors can NOT be charged with homicide?（ ）
A.an intentional killing of someone who you hated
B.an accidental killing of someone during self-defense against rape
C.an accidental killing of a passer-by when you are drunk-driving
D.an accidental killing of someone else when you intend to kill someone
3.Which of the following statements about homicide is TRUE according to the text?（ ）
A.A homicide does not include the killing of someone by accident.
B.A homicide does not include the civil lawsuit for damages caused by the death.
C.All the homicides are illegal.
D.Some homicides can be deemed as justified if they happened under self-defense.
4.Which of the following statements can be inferred from the text?（ ）
A.The lawful defense can be a good reason against the homicide charge in most state laws.
B.The U.S.laws does not approve either the criminal lawsuits or civil lawsuits in a homicide.
C.If the murderer kills someone accidently，he will also face first degree charges.
D.A homicide occurring in the heat of passion can be free from criminal charges.