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Criminal Law
Drexel University School of Law
Filler, Daniel M.

Criminal Law Overview
Distinct from Torts and Contracts
Punishment/ consequences: loss of freedom, potentially a social sanction, Remedies, penalties
Burden of proof
State brings criminal charge
State v. D
Individual breaks social contract in a crime
Reasons to create a crime
Economic harm to others
Physical harm to others
Economic loss to state (tax crimes)
To reduce vigilantism
Protecting physical space (trespassing)
Emotional harms
Protecting self (victimless crimes). Emotional and physical.
Governmental convenience
Protect morality
3 categories of crimes
Summary (often not called a crime)
Procedure Before Trial
1. Arrest by police and determination of probable cause
Probable cause required w/in 48 hours
No formal charge at this point
Right to counsel only comes when a formal charge has been filed
Able to interrogate the suspect under the Miranda rules (5th amendment privilege against self-incrimination)
2. Selection of a charge by the prosecutor (extremely wide discretion).
In substantial % of cases, prosecutors don’t proceed and made the arrest solely for social control purposes
Prosecutor may agree to drop the criminal charges if D will undertake some alternative program to prevent a recurrence of the offense.
3. Grand jury indictment or filing of information
Rarely reject a prosecutor’s request for an indictment. 
Usually consists of 23 citizens who review cases presented by the prosecutor.
Indictment or an information—enabling the accused to prepare a defense to present at a subsequent trial.
If indictment comes before arrestàright to counsel attaches at indictment. Accused is either arrested or surrenders to face the charge.
4. Arraignment
D appears in court to hear the charges and enter a plea.
If bail has not been previously set or denied, a pretrial release decision is made at this point.
Plea bargaining is problematic
Substantive criminal law typically authorizes draconian penalties
Prosecution has the power to present Ds with unconscionable pressures.
5. Discovery
More limited than civil. Criminal Ds are more likely to harass or intimidate witnesses. Right of D not to testify unfairly turns criminal discovery into a one-way street.
Brady doctrine: requires the prosecution to turn over to the defense all material exculpatory evidence upon a timely request.
6. Pretrial motions (rulings often not appealable, though commonly allowed by P to avoid double jeopardy)
1) Suppression of otherwise admissible evidence bc improperly obtained
2) Venue
3) Admission or exclusion of evidence
4) Compelling discovery withheld by the other side
5) Determining competence to stand trial
6) Court appointment of expert witnesses for an indigent D
7. Preliminary hearing
Judge may dismiss some, all or none of the charges
Dismissal of a charge for failure to prove elements does not mean P can’t bring it up again later (double jeopardy not apply)
Sources of Criminal Law
1. Statutes
Model Penal Code (model for states to follow, not the law of any jurisdiction, helps in thinking through how statutes work).
2. Precedent
Judges use common law in interpreting a statute
Reasons to overrule precedent
Social conditions have changed
Scientific knowledge has advanced
The original decision misunderstood the intent of the legislature in drafting the governing statute.
3. Constitutions (limit criminal law)
Due process
Punishment must be for conduct rather than for characteristics, conditions, statuses, propensities, thoughts
Equal protection clause
Unreasonable searches and seizures
Double jeopardy
Wholesale bans on certain crimes:
Free speech, free exercise of religion, abortion
Burdens of Proof and Due Process
D gets the “benefit of the doubt”. (allocating risk of error).
Prosecution has burden of proof in a criminal proceeding
If not element of a crime but rather separate defense, D could have the burden of proof (may be “burden of persuasion”)
D “presumed innocent”
Due Process requirement: proof beyond a reasonable doubt. Prosecution must prove all elements of a crime beyond a reasonable doubt.  
Can’t treat an element of crime as a “matter of law”, denies 6th amend. Right to jury trial.
2 kinds of burdens
1) Bur

Problems with deterrence
Level of deterrence needed varies by person
Delay and uncertainty of prosecution
Lack of information flow (most ppl who commit crimes not know what the risks are)
Irrationality (social pressures, income needs)
2. Retribution
All crime to be punished must relate to the underlying violation of the social fabric
No punishment without moral culpability
Ex. not execute a 6 year old.
Criminal law is a majorian process (majority decides, i.e. legislature)
People have to have freely chosen to commit a crime. 
People’s wills are differently situated. Person hungry making same choice as Donald Trump. 
Death penalty: D caused death, therefore D is not entitled to a benefit for life. Data for utilitarian view not strong. 
Compensation model: when you committed a crime, you did what everyone else wanted to do but didn’t. compensating society for the benefit of committing that crime
Expressive model: punishment should fully express society’s anger and unwillingness to tolerate this behavior
Rehabilitation v. Incarceration
Fixing ppl who commit crimes so they won’t commit them in the future
Works sometimes. Example: drug addiction
Expensive and takes sustained effort
Take them out of society so they can’t do any harm
Assumes no crime occurs in prison. (Crime that occurs in prison doesn’t count. Crime transfer. Rather have crime among criminals than those who are not…makes sense from a utilitarian point of view)
Burglary study
The top 10% were averaging 232 burglaries a year, median is 5.
Not clear
Not have free information flow
Can argue “no new taxes”, political way to get around “tough on crime”.