Select Page

Criminal Law
Rutgers University, Newark School of Law
Thomas, George C.


I. Introduction – Nature Sources and Limits of Criminal Law p1-6

1. The method for criminal law

a. Tells you what you must or must not do.

b. Commands are valid and binding

c. Commands are subject to sanctions

d. ** A crime is anything called a crime

e. Includes community condemnation

f. Involves the unpleasant physical consequences (ideas of crime and punishment inseparable)

g. ** Moral condemnation of community **

2. The statues be crafted so don’t delegate policy matter to police, judge jury on ad-hoc basis.


a. ‘any social harm defined and made punishable by law’

b. Criminal and civil getting similar over the years

c. Common law started on English soil

d. Legislature’s role;

1. Done BEFORE rule is broken

2. Offers a THREAT of punishment, its only good if;

a. Know if its existence

b. Aware of its contents

c. Know how its applicable (in this instance)

d. Be able to comply with it

e. Must be willing to comply

3. Limits on legislative making;

a. The constitution (like cruel and unusual punishment)

4. Present day role of Judiciary

a. Vital role in ascertain of guilt

b. Understand and explain presumption of innocence to jury

5. Model Penal Code

a. Not all common law crimes and defenses were codified

b. Silent regarding penalty

c. Criminal codes are overlapping or conflicting

d. Inconsistent penological systems [xx]

I. Introduction – Criminal Law in Procedural context – Pre-Trial p6

1. Trials are exception rather than the rule

2. Probable cause is fluid, arrest when ‘substantial cause’ of conviction.

3. Process;

a. Arrest

b. Preliminary hearing (was arrest justified ?)

c. (D can file for information document)

d. Indicted by a grand Jury

e. Charges filed

f. Pre trial motions to dismiss, exclude evidence, etc…

g. THUS; Many crimes are not reported, Majority are guilty pleas without a trial.

4. Necessity IS NOT a defense to murder (see Dudley killing Richard Parker lost at sea case)

I. Introduction – Criminal Law in Procedural context – Trial by Jury p7-8

1. Trial by Jury

a. 12 or 6 (NJ is 6), 5 was not enough.

b. IMPARTIAL jury of cross section of the community

c. Speedy and impartial trial by jury

2. Proof of guilt at a trial

a. Beyond a reasonable doubt

i. Justice Harlan; Bottom of the fundamental value (most important)

ii. Worst to convict innocent rather than guilty man free.

iii. Blackstone: 10 guily free over 1 innocent in jail.

iv. ** Tremendous power of the state **

b. Defining “Reasonable Doubt”

i. State of near certitude.

ii. 0-10 scale, 1 = arrest,5+ in civil (preponderance) and 7.5 in civil (later deemed improper)

iii. Meaning is self evident; can’t add more to it; lead only to confusion.

iv. Thought experiment;

1. Moral Certainty

a. Truth of the charge

2. Firmly Convinced

a. Highly probable

3. No Waver Vacillation

a. Not an abiding conviction of guilt, beyond every reasonable doubt.

4. No Real Doubt

a. “prove guilty beyond reasonable doubt”

5. Thoroughly Convinced

a. Are you thoroughly convinced

6. The truth and nothing but the truth

a. Where do you find the truth

3. Owens v. State p13 (MD, 1992, drunk man in car driveway, enforce presumption of evidence)

a. Found in car, cops there due to a phone call, arrested for drunk driving.

b. Guilt in Trial (no jury), appeal mostly on “Circumstantial evidence”

c. To appeal a criminal conviction;

i. (Procedural grounds) Instructions / suppress evidence too much, sustained objections, etc) -> only 5% here (if win state can re-try you)

ii. (Substantive) -> state failed to present sufficient evidence of guilt, more likely than not (OWENS CASE) <1% here (if win, case over)

d. Only right to jury trial if jail > 6 months (can always ask for Judge).

e. ISSUE: Going to or coming from drinking ? (which is more likely)

f. Was judge correct in the first place ?

g. Subjective state of near certitude.

h. Standard on review is different (less than real reasonable doubt). On review, just “more likely than not” is all you need.

i. Needs to be MORE THAN a coin flip. Role of trial judge needs to ENFORCE presumption of innocence. Presumption of innocence on appeal; Failed

4. Does premeditation exclude justification?

5. Words and laws mean what the law says it means.

III. Modern rule of Criminal Statutes – Statutory Interpretation p119-126

1. Look at statutory interpretation; different states, and rules.

2. Muscarello v. United States p119 (1998 firearm to commit drug traffic – what does ‘carry’ mean) interpretation issue

a. Trying to figure out what Congress intended.

b. Interpretation of law: is ‘carries’ mean on the person ?

c. NO; not so limited (car, glove compartment, trunk, etc..)

d. The word definition is not based on the LIMIT to the word.

e. Also, u

ommon law.

g. Holding: “Whatever openly outrages decency and is injurious to public morals is a misdemeanor”

h. Protect all of the people on the party line

i. Common Law to backstop statues (get away with anything).

j. Need to deal with the SMITH case – NOT a law to invite a married woman to have intercourse.

k. Use the sodomy … to indict the D.

l. Woodside dissenting;

i. Can’t agree that what he did is a’t just say “a crime to do bad things”

ii. Potentially injure?!W hen is the state required to act ? Essentially, wait for congress to act.

9. Keeler v. Superior Court p95 (CA 1970, D ex-husband beats preg wife & kills kid, no statute, but a crime in common law)

a. Teresa Keeler and Mr. Keeler get divorce. She gets pregnant by another guy. Mr. K then beats up his ex-wife and kills the baby. Baby (Fetus) WAS KILLED due to blows, and nothing else. “Reasonable medical certainty”

b. ISSUE: Is the Fetus a Human Being (under the statue) (if not, no murder) Penal code 187. Requires a review of “Abortional Homicide”. No law against killing fetus (favorable to the defendant)

c. Medical science has come a long way (28 weeks capable of life)

d. Rule: Ok, but still a crime via common law.

i. In 1850 said baby must be born alive (the die) and its murder, otherwise a misdemeanor. (minor wrong doing).

ii. Nothing else from 1850 to 1872.

iii. Can’t go with # above, because it does not speak to the law. (Power to define crime and punishment is in the legislative branch) BUT, courts can delete or insert words.

e. Analysis: Be careful not to ‘rewrite statue’ under the guise of constructing it.

i. Need to create rule, then punish going forward only (ex post facto – either makes something a crime, or makes a crime worse.)

ii. Can’t rewrite laws then punish (two black youths in SC, into diner)

f. Disposition: Can’t even try him on Penal Code 187 (would deny due-process)

i. Burke (dissenting) Acting Chief Justice

ii. “Human Life” when stir in the mother’s womb.