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Criminal Law
Drexel University School of Law
Benforado, Adam

Criminal Law Outline
Summer 2017; Benforado
Introduction to Criminal Law (Casebook pgs.1-29):
What is a crime?
“It’s a crime because we say it’s a crime because it’s criminal”
Brainstorm ideas of what makes something criminal/a crime.
What makes some things crimes and others not?
“Any social harm defined and made punishable by law”
“Conduct which will incur formal pronouncement of moral condemnation”
What we call a crime is influenced by outside factors
I.e.) societal moral codes, etc
52 criminal law codes
 Federal and State
There are substantive limitations on what states can do (the Constitution)
Procedural limitations
Ex post facto limitation: cannot do retroactively
Ex) can’t make drinking at all illegal then charge someone with a crime for drinking before the prohibition began
Case Progression
Example: Body found and reported to the police
Police officer arrives at the scene
Assesses for safety; secures area for the next parties who arrive
Arrest warrant for probable cause can be issued
In some cases, after 24hrs, suspect can appear before a court and be told charges, etc (magistrate hearing)
Bail hearing
Issue: do we actually need bail?
Preliminary hearing OR grand jury formation
Meant to see if there is sufficient evidence for probable cause
Preliminary hearing: information put together
Grand jury: indictment created
Not all jurisdictions
“Here is what you’re formally charged with; what do you plea?”
Exculpatory evidence: evidence which shows innocence
Pre-trial motions
Plea bargains prevent going to trial 9/10 times
In many jurisdictions, plea bargains can occur at any time in the trial process
Plea bargains threaten people
6th amendment
If sentence is 6+ months, must be offered right to jury trial
Federal level = 12 unanimous jurors
State level = 6-12 jurors, 9/12 unanimous
Voir-dir process:
Jury selection
Questions to determine jury bias, although ineffective at preventing biased juries
Peremptory challenge: can use to help get jury in your favor
Prosecutor must convince factfinder beyond a reasonable doubt of every piece of evidence
 Burden of proof
Presumption of Innocence
Owens v. State, pg14
Conviction based on circumstantial evidence
Owens drunk behind wheel of a parked car on a private driveway
 Innocent people convicted versus guilty people going free?
Type 1 (false positive) Type 2 (false negative) errors in psychology
Proof beyond a reasonable doubt:
 “a subjective state of near certitude” – Supreme Court
Issue: should we make it more objective?
 Severity of punishment changes how people define reasonable doubt in their minds
Trial Cont.
Opening statements
Prosecution witnesses
After this, defense can call for motion for directed verdict
Defense witnesses
Again can call for directed verdict
Jury instructions
Jury deliberation
Issue: jury nullification
Jury can acquit, has power to completely ignore law
Good when legislature is slow
Ex) ruling can’t discriminate against gay couples in wedding industry before law can catch up
State v. Ragland, pg.20
Convicted of possession of weapon as a felon
Issue of jury instruction: “must” vs. “may”
Assumptions of Criminal Law
Assumption 1: All victims are equal in the eyes of the law
No. Assumption incorrect.
 Implicit factors (stereotypes, culture, brain looks for shortcuts [automatic knowledge structures], confirmation bias)
Assumption 2: Eyewitness identification is accurate
1/3 pick innocent person from li

Penal Theories in Action, pgs.52-72
Who do we punish?
Animals – not anymore
Kids – rarely
Inanimate objects – urges (stupid table hit my toe, I want to hit it)
Halo Effects: beauty gets lesser sentences; e.g.) Brock Turner
Other factors that affect sentence severity:
Mortality salience
Punish more harshly when it’s high (ex: Boston Bombers get death sentence when MA doesn’t use that sentence)
Remorse and apology
Defendant seems remorseful = less sentence
Belief in pure evil
The more you believe, the harsher you’ll punish
Queen v. Dudley and Stephens, pg.52
Dudley and Stephens cast away in a storm; ate boy
How much and what punishment imposed?
People v. Superior Court (Du)
Latasha purportedly stole orange juice and put it in her backpack (13yo); defendant began pulling on her sweater; Latasha resisted and hit her in the eye twice; OJ fell out of backpack onto the floor; threw stool at Latasha; Latasha returned OJ; Defendant shot her in the back on the head, killing her instantly
People v. Du
10yr sentence from above case suspended and put on probation 
Question of punishment appropriateness
United States v. Gementera
Shaming punishment – is it okay?
Mail thief stood outside a post office with a sign that said “I stole mail. This is my punishment.”
Sentence vacated and remanded for resentencing because “public humiliation or shaming has no proper place in our system of justice” pg71