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Criminal Law
Rutgers University, Newark School of Law
Rapapport, Elizabeth


I. Procedure
1) ELEMENTS OF A CRIME: Actus Reus, Mens Rea, Concurrence, Causation!
2) Due Process (14th Amendment)
1) Criminal Procedure
§ Trial
§ Settle criminal dispute; establish guilt or reasonable doubt
§ Review evidence & procedure (due process)
§ Appropriate punishment or clear name
§ Set price against which discount occurs (plea bargains)
§ Apply rules
§ Appeal
§ Rules are explored, determined, debated, refined, redefined, reconsidered, filled out, explicated, adjusted, etc.
o Holding concludes & sets precedent, dicta does not.
§ Evidence – controlled by 4th Amdmt protection against unreasonable search/seizure
§ Circumstantial evidence may support inference of crime

o Owens v. State: Jury may infer crime from circumstances, but only if circumstances are inconsistent with any reasonable hypothesis of innocence.

§ Appeal for lack of evidence requires appellate court to review evidence & testimony to be sure it was sufficient/credible enough for a jury to convict.
o Testimony = evidence
o Jury can also find witness demeanor to be evidentiary
o “Attractive Δ”—good-looking men & women are harder to convict
§ Re dueling expert, appellate court will not review quality of expert/expertise; defers to jury
§ Jury nullification
§ Nullifying acquittal precludes prosecutor’s ability to appeal
§ Nullifying conviction can be appealed but very heavy burden for Δ
o Jury may dislike Δ, e.g., Martha Stewart
§ Jury can exercise this power but cannot be instructed accordingly
§ Useful when law/sentence is too extreme; mitigating circumstances; antiquated laws (sodomy, etc.); abuse of power; laws unaligned w/community values (treating date rape as criminal rape offense in communities where members disagree)

o State v. Ragland: Δ wanted jury instructions re jury power to nullify; court found that while jury has nullification power to acquit, it does NOT have right to be instructed.

2) Reasonable Doubt

§ In re Winship – US Sup Ct applied narrow rule of due process; prosecutor must persuade jury beyond a reasonable doubt of every fact necessary to constitute crime charged.

§ Better to let 10 guilty men go free than convict one innocent man.
§ Does not require 100% mathematical certainty
§ “Practical certainty” – no real doubt in your mind – knowing you are awake and not asleep
§ Judges instruct juries differently; use of quantities like 90% or 75% can lead to reversals
§ Juries used to be told that they could judge the law—now they can only judge facts.
3) No Bills of Attainder (Legislation declaring specific person guilty without trial or conviction)
4) No Ex Post Facto legislation (Retroactive criminalization)
5) Statutory Clarity (Vagueness must not allow prejudicial law enforcement, e.g., “vagrancy” laws)

§ Papachristou v. City of Jacksonville: vagrancy/loitering ordinance declared unconstitutional for punishing innocent conduct associated with our freedoms and

§ Some states adopted most of it, some little
§ States also use MPC comments to interpret non-MPC state statutes
§ Most states have abolished CL crimes
o Some recognize CL offenses via Reception Statutes which allow CL to fill in statutory gaps
§ CL’s modern role is in statutory development & interpretation

o Keeler v. Superior Court: Man struck pregnant ex-wife but couldn’t be convicted of murder b/c CL interpretation of statute was that fetus was not a human being. Leg then updated statute to include feticide (ex post facto prohibited retroactive crime).

o CL requires victim to die w/in 1 year + 1 day for murder charge; if state penal code (PC) does not address this limitation, court could still apply it.
5) Presumptions
§ Mandatory Rebuttable: requires finding of presumed fact unless rebutted by Δ
§ Mandatory Irrebuttable/Conclusive: requires finding of presumed fact even with rebutting evidence
o Both are unconstitutional when presumed fact is element of offense, e.g., intent
o MPC does not recognize mandatory presumptions!!
§ Permissive/Inferences: Factfinder may, not must, find fact B upon proof of fact A.
o MPC permits permissive presumptions/inferences