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Criminal Law
Drexel University School of Law
Benforado, Adam

Professor Adam Benforado

Criminal Law

Spring 2015

Drexel University


Burden of Proof

PBRD makes the difference of convicting and innocent man versus convicting a guilty one

*something so convincing, that it will be relied upon without hesitation, leaves you firmly convinced of D’s guilt

*maybe gut feeling + concrete evidence

Trial level: PBRD

Appellate: just whether any reasonable trier of fact could’ve found PBRD

C/L: must be proof beyond reasonable doubt of every fact necessary to convict offender

Owens v. state: (drunk in the car) circumstantial evidence is enough when the circumstances are

inconsistent with a reasonable hypothesis of innocence

MPC: 1.12(1) no person may be convicted of an offense unless each element proved, if insufficient proof, innocent is assumed



*When jury, despite facts and PBRD, acquits for some other reason

àcompassion, gut feeling, intuition

Why does it exist? Acts as the “conscious of the community” through fairness, the jury reflects social approval or disapproval of the laws that it believes to be unfair

problems: inconsistent with judicial purpose, undermines the legality of our laws, undermines enforcement and legitimacy of the court. May make for inconsistent precedent going forward

Ragland: judge does not have to make it known or advertised, it is a power of the jury, not a

right of D



Utilitarianism (Bentham; Greenwalt) cost benefit

Justified when: good consequences of punishment outweigh the bad

forward looking

pursuit of net benefit for society at large


general deterrence: fear into public, may deter from actual crime or crime overall

specific deterrence: fear into offender

Incapacitation: physically stops crime from happening

alternatives: restorative justice

Rehabilitation: reform criminal, remove drive to commit crimes, benefit to society

bentham- 4 step hierarchy of moral objectives

1. Prevent the offense: this is the most practical way

counter: youre dealing with offenders not necessarily dealing with offense

2. Induce less of evils: if ur gunna do a felony don’t do a violent

3. Induce no more mischief than needed

4. Cheapest way possible: economic issue $$

Retributivism (Morris, kant) just deserts

Justified when: the offender is guilty and is deserving of punishment; culpability of an offender gives society a right/duty to punish

punishing equally persons who are equally deserving

backward looking

pursuit of justice

Queen v. Dudley & Stephens (Punishment theories working)

Here, 4 people on a stranded boat, 3 stronger decide to eat 1 weaker who was already sick and was going to die

Considerations; was murder:

did nothing wrongàjustified (bolstered by utilitarian)

did something wrongàbut excused (insanity, duress


not guilty

holding: guilty of manslaughter, punished only 6 months

guilty to send message that killing is wrong

DU (Mixed theory of punishment)

15 yo girl and Asian store owner got into altercation bc Du thought girl was stealing, girl punched Du, Du picked up gun (which unknown to her had been altered) the gun went off and shot the girl

Judge considered:

protecting society from Du (util)

punishing for crime (retrib)

Could Du lead a law abiding life? (util)

does she need deterrence

does she need to be isolated so cant commit future crimes? (incar)

secure rest for victim? (uilt)

uniformity in sentencing (retrib)

Statutory purposes of punishment

Gementera (goal of punishment and must be reasonably related)

D stole mail, plead guilty, lengthy criminal record, judge sentenced 2 months incar; 3 years supervised release and 100 hours w/ sandwhich board “I stole mail”; corrected sentencing to 4 things

1. Work at lost mail window

2. Write letters of apology to victims

3. Deliver lectures to HS

4. 1 8hr day of the sandwich board

RULE: 1. punishment must further statutory goal of punishment (deterrence, protection of public, rehabilitation)

AND 2. Condition must be reasonably related to the purpose

*Humiliation and shame is inherent in punishment

àD argued humiliation, shaming conditions cause offender to withdraw from society,

inflicts psychological damage

*Punishment here served the goal of rehabilitation and general deterrence

*In conjuncture with other punishments, it is reasonably related



8th amendment bars cruel and unusual punishment, and has been interpreted that punishment is cruel and unusual when it is excessive;

Punishment is excessive when it:

1. Makes no reasonable contribution to goals of punishment (Gementera)

OR 2. Is grossly disproportionate to the severity of the crime

*8th amendment doesn’t require strict proportionality, just cannot be GROSSLY disproportional


Death penalty is not grossly disproportionate when the severity of the crime was taking a life

must weigh aggravating and mitigating circumstances before DP imposed

1. Goals of retributivism do not justify that murder is more morally depraved than rape

2. Death penalty for rape is grossly disproportionate, rape is not equal to taking a life

*considered OBJECTIVELY, public attitudes, hist

rime, did not violate the principals of legality because under common law this was punishable

dissent: crim law should be statutory, not common law, for legislators not justices


1. Primacy of the legislatureàto make laws more rep of the people

2. Variety of punishing schemesàdifferent punishing theories

3. Nature of federal systemàdoes want judges using discretion

4. Proportionality review guided by objective factorsàfairness, consistency


Keeler (cts. Cannot create an offense by enlarge meaning of statute)

murder of an unborn fetus is not considered a human being in the context of murder

Penal code: murder is the unlawful killing of a human being with malice aforethought; “human being”

Consider legislature/history: had to be born alive and then die due to incident

science advances: maybe CL requirement of live birth is no longer necessary when @ 28 weeks

fetus is viable and fully capable of independent life

HOWEVER: constitutional issues, power to define crimes & fix penalties is exclusive to the legislative branch, and the act must be prescribed by the code

Here: cannot create new statute, apply retrospectively, to make punishable a act that wasn’t criminal at the time it was performed, bc D had no notice, no Due Process

Also, an unforeseeable judicial enlargement of the statute applied retroactively operates similarly to ex post facto law


don’t want judges to overstep the legislature, maybe the court here agreed that D knew what he was doing but scared for precedent and implications

Violating principles of legality: 1. Knowledge 2. Cannot be vague 3. Interp in D favor

Dissent: change in modern medicine, and the only reason it was done like that before was

bc couldn’t tell if baby was alive or dead. Cannot kill someone old and sick who is nearly dead,

so you cannot kill someone who is almost alive


The definiteness of a statute protects against lack of fair notice and defines standard of guilt

In re Banks (vague and overbroad)

D argued peeping tom statute unconstitutional

1. Too vague (can be applied in a selective or discriminatory manner by PO)

2. Overbroad-prohibits legitimate conduct (not here bc statute said wrongful purpose, therefore

doesn’t include innocent)