Criminal Law Outline

CRIMINAL LAW – Outline
 
I)       INTRODUCTION: SETTING THE STAGE
A)    Nature, Sources, and Limits of the Criminal Law
1)     Henry M. Hart, Jr.: The Aims of the Criminal Law
a)      Series of general terms telling people what they must or must not do
b)      Commands are taken as valid and binding upon all who come under the terms
c)      The commands are subject to one or more sanctions for disobedience which the community is prepared to enforce.
d)      What distinguishes a criminal from a civil sanction and all that distinguishes it, is the judgment of the community condemnation which accompanies and justifies its imposition
e)      The method of criminal law involves something more than the threat of community condemnation of antisocial conduct
i)       It involves, in addition, the threat of unpleasant physical consequences, commonly called punishment.
B)    Criminal Law in a Procedural Context: Pre-Trial
1)     Report —- Investigation —- Arrest —- Probable Cause —- Indictment (Grand Jury, State/Federal) or Information (State) —- Plea
C)     Criminal Law in a Procedural Context: Trial by Jury
1)     6th Amendment provides “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.
a)      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.
b)      Provides that ” the accused shall enjoy the right to an impartial jury”.
2)     Jury of 6-12, unanimous or majority
3)     Impartial jury
a)      Attorneys examine prospective jurors (“venirepersons) to discover possible bias prior to trial (voir dire).
b)       If partiality is discovered, juror is excused “for cause”
4)     Attorneys can exercise a limited number of “peremptory” challenges not based on cause.
a)      14th Amendment Equal Protection Clause is violated if a prosecutor or defense lawyer exercises such a challenge solely on the basis of the venireperson’s race or gender
5)     The accused is entitled to a jury drawn from a pool of persons constituting a fair crosssection of the community.
a)      Right violated if large distinctive groups of persons, such as women or members of racial or religious groups, are systematically excluded from the jury pool for illegitimate reasons.
D)    Proof of Guilt at Trial
1)     “Proof Beyond a Reasonable Doubt” – Supreme Crt: juror’s mind be in a “subjective state of near certitude” of guilt.
a)      Supreme Crt (1970): in order to provide “concrete substance for the presumption of innocence- that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of our criminal law”.
i)        Due Process Clause requires the prosecutor to persuade the factfinder “beyond a reasonable doubt of every fact necessary to constitute the crime charged”.
b)       The Winship Court justified the reasonable-doubt standard this way:
i)        “A society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.”
c)       Justice Harlan, conceded that the practical effect is to enhance the risk that factually guilty people will be set free.
i)       It is far worse to convict an innocent man than to let a guilty man go free
2)     Enforcing the Presumption of Innocence
a)      Owens v. State (Court of Special Appeals of Maryland, 1992)
i)        Procedural History: Owens was convicted by a judge (no jury) of driving while intoxicated. On appeal, claims judge was erroneous of finding him guilty because the evidence was not legally sufficient to support such finding. Argues that conviction was under the Transportation Article, which is limited in its coverage to the driving of vehicles on “highways” and does not extend to driving on a “private road or driveway”.
ii)      Issue: Whether there were any attendant and ancillary circumstances to render less likely, and therefore less reasonable, the hypothesis of innocence.
iii)    Holding: The diminishing force of one inference enhances the force of its alternative and makes the drawing of the inference of guilt more rational and, therefore, within the proper purview of the factfinder
iv)    Reasoning: It can be inferred that Owens was either 1) had just arrived by way of a public highway or 2) was just about to set forth upon the public highway. In the 1st instance, defendant guilty, in the 2nd instance, not guilty.
Þ      Court looks for tiebreaker
Ø The 3 beer cans in the car: It is unlikely that he sat in the car in the driveway, drank 3 beers in the car and passed out from intoxication.
Ø Suspicious vehicle report: unlikely if he was sitting in his own driveway
II)    PRINCIPLES OF PUNISHMENT
A)    Theories of Punishment
1)     In General – Kent Greenwalt: Punishment
a)      Questions that retributivists and utilitarian’s seek to answer:
i)        Why do we enact laws that define specified conduct as criminal and impose punishment for violation of those laws?
ii)      To whom may punishment be applied and in what manner and amount?
b)       Dominant approaches to justification
i)        Retributive – punishment is justified b/c people deserve it (backward-looking)
ii)      Utilitarian – justification lies in the useful purposes that punishment serves (the latter approach is sometimes also referred to as “consequentialist” or “instrumentalist”). (forward- looking).
c)       Characteristics of punishment
i)        “it is performed by, and directed at, agents who are responsible in some sense. God and humans can punish; hurricanes cannot. People, but not faulty tv sets, are fit for punishment.”
ii)      It involves “designedly” harmful or unpleasant consequences.
iii)    The unpleasant consequences usually are “preceded by a judgment of condemnation; the subject of punishment is explicitly blamed for committing a wrong.”
iv)     It is imposed by one who has authority to do so.
v)       It is imposed on an actual or supposed violator of the rule of behavior.
2)     Utilitarian Justifications
a)      Deterrence – by punishing those who commit acts condemned by society, others will be deterred from committing similar acts.
i)       Society’s demand that certain acts be punished expressed its collective belief in the wrongfulness of some acts.
Þ     Failure to punish has the effect of endorsing acts that are contrary to society’s value structure of what is right and wrong.
ii)    Punishment should not be designed to exact retribution upon convicted offenders but to deter the commission of future offenses.
iii) Severity of punishment may or may not be an effective deterrent.
iv)   More important in deterring crime is increased certainty of arrest, conviction, and imprisonment.
v)     Certainty and severity of punishment together operate as the most effective deterrents.
b)      Jeremy Bentham: An Introduction to the Principles of Morals and Legislation
i)        “Nature has placed mankind under the governance of 2 sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.”
ii)      Principle of utility is that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question.
iii)    The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community.
Þ      Should exclude things that subtract from that happiness, such as mischief.
iv)     Punishment is mischief and evil and must only be admitted to exclude some greater evil
v)       Punishment should NOT be inflicted in the following:
Þ      Where it is groundless: where there is not mischief for it to prevent; the act not being mischievous on the whole
Þ       Where it must be inefficacious: where it cannot act so as to prevent the mischief.
Þ      Where it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented.
Þ      Where it is needless: where the mischief may be prevented, or cease of itself, w/o it: that is, at a cheaper rate
c)      Kent Greenwalt: Punishment
i)        In modern usage, utilitarianism is often employed to refer broadly to theories that likely consequences determine the morality of action
ii)      General deterrence. Knowledge that punishment will follow crime deters people from committing crimes, thus reducing future violations of right and the unhappiness and insecurity they would cause.
Þ      The greater the temptation to commit a particular crime and the smaller the chance of detection, the more severe the penalty should be.
Þ       Seeing others punished for a certain behavior can act as a deterrent even if that persons thinks they will not be caught.
iii)    Individual deterrence.
Þ      To deter an offender from repeating his actions, a penalty should be severe enough to outweigh in his mind the benefits of the crime.
Þ       For utilitarians, more severe punishment of repeat offenders is warranted partly b/c the 1st penalty was not an effective deterrent
iv)     Incapacitation and other forms of risk management.
Þ      Imprisonment temporarily puts convicted criminals out of gen’l circulation and the death penalty does so permanently.
Þ      Less drastic are probation, accompanying requirements (e.g., random urine tests), and prohibitions (e.g., use of alcohol, etc.)
v)       Segregation from society
vi)     Reform
Þ      Punishment may help to reform the criminal so that his wish to commit crime will be lessened, and he can be a happier, more useful person.
Þ      b. Usually conceived as involving more positive steps to make offenders alter their basic character, improve skills, or teaching them how to control their criminal behaviors.
d)       From Notes and Questions p36-37
i)        Does punishment deter?
Þ      Benefit of punishment depends on several factors:
Ø Nature of the offense
Ø Type of offender involved
Ø Perceived risk of detection, arrest, and conviction
Ø Nature and severity of the penalties threatened or imposed
Þ      In gen’l, an increase in the detection, arrest and conviction rate is of greater deterrent consequence than an increase in the severity of the penalty upon conviction.
Þ      Incarceration
Ø B/c utilitarians believe that punishment is a mischief that should not be imposed unless it will result in a net benefit to society, punishment based on this principle is only justifiable to the extent that the sentencing authority can reliably predict the future dangerousness of offenders.
Ø Criminological studies do NOT provide an optimistic appraisal of our predictive capacities in this regard.
Ø Current strategy of incarcerating more persons for longer terms is sometimes justified on dual grounds:
→    Incarcerated criminals cannot commit more crimes (specific deterrence by incapacitation
→    The increased likelihood of long prison sentences will dissuade others from committing crimes (gen’l deterrence).
v “three strikes” laws have not reduced crime rates (some studies show)
ii)      Rehabilitation (tied in with individual deterrence)
Þ      Conventional wisdom is that past efforts to rehabilitate convicted offenders were mostly unsuccessful (some claim under-funded program)
Þ      Recent meta-analysis – rehabilitation reduces recidivis