Walen
Criminal Law outline
Spring 2011
Week 2
Curley Standard pg. 31- If the evidence is such that a reasonable jurymen must necessary have doubt, the judge must require acquittal, because no other result is permissible within the bounds of jury consideration. But if a reasonable mind might fairly have reasonable doubt or might fairly not, the case is for the jury, and the decision is for the jurors to make. A trial judge must determine whether a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes a reasonable doubt or no reasonable doubt is possible, he must let the jury decide the matter.
more doubt/ higher standard than preponderance of the evidence
higher standard than clear and convincing evidence
In Re Winship pg. 29
Mullaney v. Wilbur pg. 33- the state has the burden to prove every fact of the case beyond a reasonable doubt
Patterson v NY pg. 33- The persecution must prove every ingredient in an offense beyond a reasonable doubt, but can allocate the burden to the D to prove a defense by a preponderance of the evidence.
The state can shift the burden of persuasion so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The due process clause requires the prosecutor bear the burden beyond a reasonable doubt if the factor at issue makes a difference in stigma.
Burden
Defense bears burden of production
Prosecution bears burden of persuasion (usually)
Punishment
Dudley- you must have an absolute necessity to kill and eat someone. Here, they should have waited for the boy to die. They did not have an excuse.
Different types of murders- culpable aggressor, innocent aggressor, etc.
Excuse- exist to show compassion for human weakness. Reduce crime from murder to manslaughter.
Retributive – backward looking
Utilitarian- forward looking
i. Deterrence
ii. Rehabilitation
iii. Incapacitation
Model penal code reasons for punishment
Week 3
Retributive and utilitarian
Cardinal v. Ordinal
Deterrence- Bentham pg. 92- when a man thinks pain to be the consequence of an act, he won’t do it. Criminals do not always think about punishment.
Specific deterrence- deter the individual criminal from doing future acts
General deterrence- focuses on the general prevention of crime by making examples of criminals.
i. In order to deter someone, they must know the law.
ii. must perceive costs as greater than the benefit
iii. he must be able to bring knowledge to bear (usually criminals do not know the law).
Utility calculus- some crimes are so rare, that the punishment must be really high to deter people.
Ways to increase deterrence
i. Increase conviction
ii. Increase severity of punishment
iii. Increasing likelihood of conviction works better
1. Increasing severity of punishment reduces conviction
Criminal law must
i. Punish those who deserve it
ii. Protect those who do not
iii. Where punishment is deserved, imposing the correct amount
Rehabilitation- reduce recidivism (utilitarian)
Mixed retributivism
Hybrid
Pure
i. Cardinal
ii. ordinal
Incapacitation- most important, least studied
Pg 104- Why it is unjust to let some people go, but not others, because we think they will commit more crimes.
Milliken pg. 107- acts hard to detect. It is worth it to make the punishment higher so he is deterred.
i. General deterrence- used here. Utilitarian
ii. We punish for acts, not for character. He was a good guy that did a lot for the community. Retributivism.
iii. He must trade with the government for a lower sentence- retribuvism.
iv. Penality goes up as detectability goes down.
Jackson pg. 112- sentenced to life in prison after he robbed a bank 30 minutes after being released.
i. Harsh because ppl don’t commit crimes after a certain age.
ii. Not harsh because he will never learn.
iii. Some states- after 2 felonies, you 3rd felony gets you life in prison without parole.
Week 4
1. Shaming
a. Gementera pg. 114- stole letters out of mailboxes. D had to hold a sign that said I stole mail.
b. D claims its humiliation. Courts says its rehabilitation. If they said that its humiliation, then it is not allowed.
c. Pg. 118- other shaming cases.
d. The greater power includes the lesser. Wisconsin v. Oakley pg. 120
2. What to punish
a. Lawrence v. TX pg. 121- adults can do whatever they want in their homes. This is not a crime.
b. Privacy in the bedroom- birth control, etc.
c. Autonomy- masturbation- effects no one
onal to use this rule here. D wins.
iv. Rule of lenity- Def.
1. Not in MPC
2. If in jdx that used MPC, D would be guilty.
3. Do not want innocent ppl going to jail so scales are tipped using lenity.
4. Mochan- letting the court create new crimes is the opposite of lenity.
Rogers v. TN- gave judges scope to change law retroactively.
Rule- you cannot convict of murder unless the victim die 1 year 1 day later.
Victim died 1 year, 3 mo. later. SC says TN can change the law
Point of the law- make sure the person died of the injury from the confrontation. In this case, the victim definitely died from the D’s acts.
Also a dissent to this- violates an ex post factor clause- punishment without law.
Ordinal proportionality- more serious crimes get more serious punishments
Proportionality- punishment must be proportional to the offense.
MPC, CA Penal Code, NY Penal Code
Bentham’s rules
People wont enforce the law if punishment is too high.
Theories- on proportionality and punishment
Ewing pg. 172- 3 strike felony rule. This has no proportionality.
2 felonies, then commit a 3rd- gets life in prison.
Wobbler- not a felony, but if you have felonies, it may count as one.
4 principles of proportionality
Worried about recidivism- this rule reduced recidivism by 25%.
8th Amendment- no excessive bails or fines. Proportionality only important if its grossly improportionate.
i. Disproportionate- crime is harsh and undeserved.
ii. Totalitarian and retributarian
iii. “unusual” punishments- if all states do it, its not unusual.
iv. Pg. 178- other cases with disproportionate punishments.
v. Pg. 180- successful 8th amendment challenges.
1. Struck down 3 strikes rule for a sex offender who failed to register 5 days before his birthday
2. Struck down a 52 year sentence for a 20 yr. old male that had sex with an underage girl.
3. Selling drugs- worse to sell heroin than pot, and worse to sell to children than adults.
