Criminal Law Outline
Thursday, January 29, 2009
2:53 PM
1. Introduction to Criminal Law
A. Sources of Law
1. Constitution
a. Separation of Powers/Jurisdiction (Implied)
§ Job Descriptions
§ Legislature: Make Law
§ Executive: Enforce
§ Judicial: Interpret
b. Constitutional Limits
§ No Ex Post Facto Laws
§ No Retroactive application
§ No Bills of Attainder
§ Laws that punish a specific individual or member of a group without the benefit of a judicial trial.
iii. Due Process: Notice and Fair Warning
§ Notice: Reasonable Person Standard and
§ Fair: Not unduly vague
iv. Void for Vagueness
§ How to survive a void for vagueness challenge:
· A law that is excessively vague on its face can be interpreted narrowly by courts, legislatures, or appropriate administrative bodies to create “tolerable vagueness”
· Example: A narrow construction of the word “immoral” sexual intercourse explaining with greater clarity what the word means, such as a limit to minors or to incest or bigamy.
v. No Cruel and Unusual Punishment
§ Example: Charging a crime for a person’s status, rather than an act.
2. Statutes
a. Statutory Interpretation (TIP)
i. Textualism (Scalia):
§ The plain meaning of words
§ The structure of the words together
§ The Rule of Lenity
· The policy to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.
ii. Intentionalism (Breyer):
§ Of the legislature through legislative history
§ Through prior laws
§ Through case law/other
iii. Policy (Dynamic):
§ Morals, utility, competency, and administrability
§ Must consider history, legislative interpretation, human needs, the best way to interpret the statute today.
3. Judges (Common Law)
· The Principle of Legality:
Requires advance notice AND
Fair warning of what is criminal
§ The law is general and prospective (but not unconstitutionally vague)
§ Words are inherently vague
§ Need Interpretation–Modes of Interpretation
· Rule of Lenity: The policy to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit
Process of a Criminal Case
Indictment (Comparable to a Civil Complaint–Formal Charging)
Arraignment: Pleading (Guilty, Not Guilty, No Contest–can’t be used against you later)
Gathering of Discovery
Pre-Trial Motions–usually made by defense (to dismiss, to suppress evidence, to suppress statements)
Trial
Post-Trial–Appeals or Sentencing and Probation
Arguments
Precedent
a. Cases
b. Statutes
2. Policy
a. Morality: blameworthiness
b. Utility: costs outweigh the benefits/deterrence
c. Workability: predictable general rule/slippery slope
d. Competency: who decides (Jurisdiction)?
2. Generic Ingredient of Criminal Laws
A. Crime Versus Tort
· Form of Remedy
· Criminal Law often involves jail(Shorter term)/prison (Longer term) and/or fines
· Civil may involve injunctive relief, monetary relief, etc.
· Parties
·
ples: lifeguard, bodyguard, babysitter
§ Relationship: Where one stands in a certain status relationship to another
· One recognized by law
· Examples: parent-child, husband-wife
§ Assume Care and Seclude: Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid
· Example: Ms. Jones agreed to help another with their children, and she left them in the basement without assistance (secluded).
§ Peril Created by the Actor: Where one wrongfully creates peril
· Example: Leaving Kibbe on the side of the highway drunk, with his pants down
§ Exception: Pulling the plug is considered stopping treatment (an omission, not an act), and does not fall within these five legal duties.
ii. Prerequisites to Legal Duty:
§ No Danger to the Actor
· Must be able to act with reasonable safety
§ Capacity to Assist
· Knowledge of the situation
e. Possession
i. Definition:
§ Act of possessing; while
§ Knowingly possessing the thing
ii. Types of Possession
§ Actual Possession: Something is on someone’s person, in their clothing, or within their physical custody.
· Even within reach sometimes
