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Criminal Law
Charleston School of Law
Gammons, Debra J.

Criminal Law
Instructor: Debra J. Gammons
Fall 2013
Chapter 2 – Criminal Statutes
§ 2.01 – The Basics of a Criminal Prosecution
1.       The Investigation
2.       The Charge
– Indictment – formal prosecution document
3.       Pre-Trial Motions
4.       Trial
5.       Plea Bargain
6.       The Jury Instruction
7.       Motion for a Judgment of Acquittal
8.       Double Jeopardy
–          An important exception to this rule is the Dual Sovereignty Doctrine – which permits a different state or the federal government to prosecute a person for the same crime so long as the state or the federal government has jurisdiction over the offense.
9.       The Basis for an Appeal
a.       Insufficient evidence
b.      Improper jury instruction
c.       Evidentiary challenges
d.      Constitutional challenge
The government cannot appeal a not guilty verdict returned by the jury, but if a court dismisses a charge before trial, or grants a judgment of acquittal after the jury returns a guilty verdict, then the government is allowed to appeal.  The government can appeal sentencing issues, although a jury decision not to impose a death sentence cannot be reviewed.
§ 2.02 – Statutory Basis of Criminal Law
1.       Criminal Statutes
–          Crimes are usually divided into two categories: felonies and misdemeanors.
–          “Malum in se” or “malum prohibitum” – conduct is wrongful in itself – in se – or wrongful through legislative prohibition.
–          As a general matter, “malum prohibitum” crimes can have a lower intent, or even require no proof of intent, known as “strict liability” offense.
2.       The Model Penal Code
§ 6.02 – Proof Beyond a Reasonable Doubt
– The burden of proof is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted.  It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime.
A.      Reasonable Doubt
United States v. Jackson
Brief Fact Summary. Defendant, Jackson, robbed a bank after he was released from prison on a work release program. Jackson had just finished serving two conviction sentences for robbery. He was sentenced to life in prison under a statute which provided that anyone with three previous felony convictions for robbery or burglary (or both) who possesses a firearm shall be imprisoned not less than fifteen years without the possibility of parole. Jackson had been previously convicted of four armed bank robberies and one armed robbery.
Synopsis of Rule of Law. The selection of a sentence within the statutory range is free of appellate review.
Facts. About thirty minutes after Defendant, Jackson, was released from prison after serving two bank robbery convictions, he robbed another bank. Jackson had been previously convicted of four armed bank robberies and one armed robbery.
He was sentenced to life in prison under a statute which provided that anyone with three previous felony convictions for robbery or burglary (or both) who possesses a firearm shall be imprisoned not less than fifteen years without the possibility of parole. Jackson claimed that while the statute allowed the imposition of any amount of years, it did not authorize a life sentence.
Issue. Was the imposition of life in prison on Jackson permissible?
Held. Yes. Judge Easterbrook delivered the opinion of the court. Defendant agrees that the statute permitted the imposition of any term of years but insists that it allowed only a determinate numbers of years and therefore did not authorize a life sentence. When parole is forbidden, a judge may use either method to reach the same result.
Jackson was thirty-five years old when he committed the crime. Unless there are major advances in medicine, a long term of imprisonment (e.g., 60 years) and life are the essentially the same sentence. It would be ridiculous to read the statute as authorizing one but not the other. Jackson was a career criminal who committed armed robbery on the day of his release following earlier armed robbery convictions dating back to the early 1970’s. Specific deterrence had failed.
Concurrence. Judge Posner concurring. I agree with the court’s decision, but feel as though the sentence is too extreme. However, the Appellant presents no grounds on which to set aside an excessive sentence.
Even though he committed multiple armed robberies, Jackson did not physically hurt anyone during the course of his crimes. This fact is relevant to decide whether the enormity of his conduct justifies a sentence of life in prison. For example, few murderers or rapists are given such a severe punishment. Criminal careers diminish with age, and it is unlikely Jackson would commit this crime again if he is released thirty years from now at age 65. The sentence might be justified if it were likely to prevent others who are similarly situated from doing the same thing.
Discussion. The statute reflects a judgment that career criminals who continue to possess weapons should be dealt with in a severe manner.
Notes and Questions
1.       Policy Rationales
2.       Burden of Production / Burden of Persuasion
a.       There are two burdens on the government in proving “every fact necessary to constitute the crime”: the burden of production and the burden of persuasion.  The burden of persuasion is encapsulated in the “beyond a reasonable doubt standard”
3.       Differing Views on Burden of Production
4.       Defendant’s Role
5.       Affirmative Defenses
6.       Affirmative Defenses that Negate an Element of the Offense
7.       Circumstantial Evidence
a.       The government needs to introduce sufficient proof so that a reasonable juror could find the defendant guilty beyond a reasonable doubt, but not that the evidence compels such a conclusion.
People v. Solmonson
Notes and Questions
– The appellate court reviews the evidence in the light most favorable to the government, with all inferences drawn from the facts proven at trial in favor of the guilty verdict
– A challenge to the sufficiency of the evidence is very difficult to win because the burden of proof now shifts to the D to establish that no reasonable juror could have found him guilty, with all inferences from circumstantial evidence running in the government’s favor.
State v. Rimmer
Procedural Background: TC convicted him of theft, aggravated robbery, and the 1st degree murder of the victim, Ricci Ellsworth. A Shelby County jury imposed the death sentence. Now, it’s in TN USDC.
Facts: Defendant had on and off again relationship with victim. He told his two inmates he had desire to kill her on release from prison. There was plenty of circumstantial and forensic evidence to show this.
Issues: Whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.
Rule: Differences among jurors i

– Statutory interpretation of criminal statutes requires that the lawyers (and judge) focus first on whether the words should be construed broadly or narrowly.  As a general matter, the defense lawyer wants the operative terms of a statute defined as narrowly as possible in order to argue, or present a defense, that the D’s conduct fell outside the statutory prohibition.  The prosecutor frequently seeks a broader interpretation of the words to encompass an array of conduct that usually includes the particular D’s actions.
People v. Lopez
Defendant approached car owner and offered to sell him a watch, later pulling out a gun and telling owner to get out of the car.  Owner got out of the car and left the keys in the ignition.  Defendant then got in the car and placed his backpack in the vehicle.  Owner soon realized the gun was an air gun and attempted to get back in the vehicle to retrieve his checks.  Defendant attempted to shoot owner with the air gun, but then fled when it misfired twice.  Defendant argued at trial that because he had not started the car, nor moved it, he was not guilty of carjacking.
Court of appeals upholds carjacking conviction.
Carjacking – “the felonious taking of a vehicle in the possession or another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”
Does the element of “taking” required of a crime such as carjacking or robbery require “asportation” or “movement” of the car?
No.  There is no evidence that the California legislature intended the “taking” requirement to differ from other theft crimes.  The intent of the legislation was to sustain convictions of those who with the temporarily dispossess a vehicle.  The legislature is silent on exempting the asportation requirement of carjacking.  Such silence along with the plain meaning of the statutes displays the legislative intent that asportation be a necessary element of carjacking crimes.
State v. Donaldson
Rule of Lenity
– Unique to criminal law is the statutory maxim that criminal statutes should be interpreted narrowly in order to ensure that a D is not convicted for a crime about which the person may have been unaware.
– If the words of a statute offer 2 possible meanings, and each meaning is both plausible and constitutional, then the court must decide which interpretation it will follow.  Lenity controls here, and the court should interpret the statute narrowly in favor of the D.