Jordan – Criminal Law – Spring 2012
A crime causes ‘social harm’ in that the injury suffered involves ‘a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity.
A crime is an act or omission and its accompanying state of mind which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.
· Indeterminate sentencing system occurs when trial judges have broad discretion in sentencing. Here, the judge, and not the legislature, sets the appropriate punishment for each offender within very broad legislative imposed parameters. The release decision of a prisoner is determined by a parole board based on the inmate’s rehabilitative progress and other factors.
· Determinate sentencing systems have a specific setting for each crime that is determined by the legislature. It does permit a specified lower or higher sentence if specific aggravating or mitigating circumstances are proven. The convicted defendant goes to prison knowing exactly how long she will be incarcerated. Parole boards do not exist in these jurisdictions.
Theories of Punishment
Utilitarianism
Utilitarianism is a form of ‘consequentialism,’ which in its pure form which in its pure form holds that the justification of a practice depends only on its consequences.
Utilitarians believe that a person will act according to his immediate desires to the extent that he believes that his conduct will augment his overall happiness.
Goals:
General deterrence: D is punished in order to convince the general community to forego criminal conduct in the future. D’s punishment serves as an object lesson to the rest of the community
Specific deterrence: D’s punishment is meant to deter future misconduct by D. Occurs in two ways:
Incapacitation: D’s imprisonment prevents him from committing crimes in the outside society during the period of segregation
Intimidation: D’s punishment reminds him that if he returns to a life of crime, he will experience more pain.
Rehabilitation (reform): use the correctional system to reform the wrongdoer rather than to secure compliance through the fear or ‘bad taste’ of punishment.
Retributivism
Retributivists believe that punishment is justified when the wrongdoer freely chooses to violate society’s rules and it is deserved.
Retributivists believe that it is morally fitting that an offender should suffer in proportion to his culpable wrongdoing.
Assaultive retribution/public vengeance/societal retaliation: because the criminal has harmed society, it is right for society to hurt him back.
Protective retribution: punishment is not inflicted because society wants to hurt wrongdoers, as with assaultive retribution, but because punishment is a means of securing a moral balance in the society.
Pre-Trial
· The US Constitution prohibits the police from arresting a suspect unless they have probable cause to believe that the individual committed an offense.
o Probable cause requires that there be a substantial chance that the suspect committed the offense that is under investigation. Probable cause is the amount of proof needed for an arrest or search warrant. This is enough to detain a person. This is a higher burden of proof then reasonable suspicion.
o Reasonable suspicion is enough cause to question someone for something. Questioning of reasonable suspicion can lead to an amount of probable cause or lack of. This is not enough to detain a person.
o Clear and convincing is in between preponderance of the evidence and absolute certainty and is used in civil cases where certain issues require this to be established.
· The arrestee is entitled to a preliminary hearing within two weeks after arrest, at which proceeding a judge must determine whether the arrest was justified. If a judge determines that there was justification for the arrest, the prosecutor files an information in trial court and proceeds to trial.
o Information: A formal criminal charge made by a prosecutor without grand-jury indictment.
· Sometimes the accused cannot be brought to trial unless they are indicted by a grand jury.
o A grand jury consists of lay members of the community who consider evidence presented to them by a prosecutor, after which they deliberate privately, and determine whether adequate evidence exists to prosecute the accused. If so, they will issue an indictment.
o Indictment: The formal written accusation of a crime, made by the grand jury and presented to a court for prosecution against the accused person; the act or process of preparing or bringing forward such a formal written accusation.
· A plea bargain is when a D enters a guilty plea that the facts did happen and the D admits in court and under oath that they committed the acts. The judge must be convinced that it is knowing and voluntary and the admission of the facts is believable.
Trial By Jury
· The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
· The right to a trial by jury includes, “as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of guilty in all prosecutions for which the maximum potential punishment exceeds incarceration of six months.
· The purpose of the jury system is to defend against exercises of arbitrary power by the Government and to make available to defendants the common-sense judgment of the community.
Proof of Guilt at Trial
The Due Process Clauses of the United States Constitution require the prosecutor in a criminal tri
inal proceeding.
Transferred intent: attributing liability to a defendant who, intending to kill or injure on person, accidentally kills or injures another person instead.
Knowingly: A person has knowledge of a material fact if he: (1) is aware of the fact; or (2) correctly believes that the fact exists.
Willful blindness: generally exists if the actor (a) is aware of a high probability of the existence of the fact in question; and (b) deliberately fails to investigate in order to avoid confirmation of the fact.
Recklessness (Criminal): requires proof that the actor disregarded a substantial and unjustifiable risk of which he was aware.
Negligence (Criminal): a gross deviation from the standard of care that a reasonable person would have observed in the actor’s situation that constitutes an unjustifiable risk of causing harm to another of which he should have been aware.
To determine a reasonable person standard, evaluate:
1. The gravity of harm that foreseeably would result from the defendant’s conduct;
2. The probability of such harm occurring:
3. The burden or loss to the defendant of desisting from the risky conduct.
Malice: a person’s intentional or reckless cause of a social harm prohibited by the offense.
General Intent v. Specific Intent:
Specific intent: (1) an intent or purpose to do some future act or to achieve some further consequence beyond the conduct or result that constitutes the actus reus of the offense or (2) provides that the actor must be aware of a statutory attendant circumstance.
General intent: conviction upon the proof of a lesser state of mind than specific intent.
· Strict liability is the punishment of a person in the absence of mens rea. The prosecutor must prove that the criminal mind frame was not necessary to prosecute and the statute intended it this way. This applies to public-welfare offenses and is a policy that we must protect people. This also includes statutory rape as a matter of policy.
o MPC 2.05 – The voluntary act and mens rea requirements need not apply to offenses graded as violations, rather than crimes. Violations are offenses that cannot result in imprisonment or probation, but may result in fines.
