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Criminal Law
Rutgers University, Newark School of Law
Contesse, Jorge

Professor Contesse

Criminal Law

Spring 2015

Course Outline

Crime and Punishment

1. Why do we criminalize and punish?

2. How do we punish?

The elements of criminal conduct

1. The criminal act (“actus reus”)

2. The criminal mind (“mens rea”)

Criminal wrongdoing

1. Homicide

2. Rape

3. Inchoate offenses

Criminal responsibility

1. Accomplice liability

Defenses to crime

1. Principles of justification

2. Principles of excuse

The global power to criminal and punish

1. International criminal law

Criminal Homicide

How to determine gradation under CL:

· Common Law:

Is the killing premeditated and deliberate?

o Yes- 1st Degree.

o No – Is there express malice? (The intent to kill)

§ Yes- 2nd Degree

§ No- Is there implied malice? (Malignant heart- indifference to human life)

· Yes- 2nd Degree


o Involuntary (gross negligence)

o Voluntary (heat of passion/provocation- not just verbal)

How to determine gradation under MPC


· Is it knowingly or purposely or extreme recklessness?

o Yes- purpose or extreme reckless homicide.

o No- Manslaughter

§ Reckless manslaughter or EEMD

· If not that, then negligent homicide (gross negligence)

Chapter 1. Introduction: setting the stage

Class 1 pp. 1-18

Syllabus: [Introduction]

A. nature, sources, and limits of the criminal law

1. Criminal law is a series of directions or commands, formulated in general terms, telling people what they can and cannot do.

2. They speak on the community’s behalf, apply to that community, and are enforced by that community.

3. Disobedience of these commands leads to sanctions

What distinguishes criminal law, then?

A criminal sanction is distinguished from a civil one by ” moral condemnation of the community followed by a punishment]

A crime is an action that a majority of the community agrees is the manifestation of an individual’s damaged moral sensibility.

*Four conditions must always be satisfied for effective enforcement of the criminal law: 1) the primary addressee who is supposed to conform his conduct to the direction must know a) of its existence, and b) of its content in relevant respects; 2) he must know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance; 3) he must be able to comply with it; and 4) he must be willing to do so.

Essence of punishment: expression of community’s hatred, fear, or contempt for the convict, which alone characterizes physical hardship

Conduct, which will incur a formal and solemn pronouncement of the moral condemnation of the community.

Sources of Criminal Law:

1. Common Law (C/L) stems from British C/L

2. Statutes (jurisdictional)

3. Model Penal Code (MPC)

Legislature makes laws in advance of their commission with threats of condemnation. Other agency carries out threats.

Legislature doesn’t have unlimited power: No cruel and unusual punishment, no ex post facto punishment, persons may not be deprived of life, liberty or property without due process of law.

b. procedural context: pre-trial

Crime reported to police à arrest (if sufficient evidence and investigated by police) à preliminary hearing where judge decides if arrest is justified à grand jury indicts accused à pretrial motions à guilty/not guilty plea à trial (entitled to trial with jury of peers.)

c. procedural context: trial by jury

VI Amendment: “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The right to trial by jury 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.

Purpose: right to jury protected against corrupt judicial officials and persecution by the Government.

Criminal Trial Jury: Jury is normally 12, but juries as small as 6 are permitted. Some state laws permit non-unanimous verdicts if a “substantial majority” has voted to convict. A juror is not impartial if “her state of mind in reference to the issues or parties involved in the case would substantially impair her performance as a juror in accordance with the court’s instructions on the law. Such information is discovered in voir dire of prospective jurors (aka venire persons).

Peremptory challenges are permitted, though the 14th Amendment Equal Protection Clause is violated if a venire person is challenged solely on his race or gender.

Purpose of jury system: to defend against exercises of arbitrary power by the Government and to make available to Ds the common-sense judgment of the community, the accused is entitled to a jury drawn from a pool of persons constituting a fair cross-section of the community. This right is violated if large distinctive groups of persons (women, racial or religious minorities) are systematically excluded from jury pools for illegitimate reasons.

d. proof of guilt at trial

1. “Proof Beyond a Reasonable Doubt”

In Winship, to provide concrete substance for the presumption of innocence, Due Process requires the prosecutor to persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged.

The reasonable doubt standard reduces the risk of convictions resting on factual error; a society that values the good name and freedom of individuals should not condemn a man when reasonable doubt exists; moral force of criminal law must not be diluted when people are in doubt about a convict’s guilt

Presumption of innocence; innocent before proven guilty.

Defined: “Proof beyond a reasonable doubt” standard requires that a juror’s mind be in a subjective state of “near certitude of guilt.”

Standard is not quantifiable. US Supreme Court held the Constitution neither prohibits nor requires trial courts to define the term. But, if a court does choose to define the concept, there must be no reasonable likelihood that the definition, taken as a whole, would allow a conviction insufficient to meet the constitutional standard.



The jury has the raw power to acquit D for any reason whatsoever.

State v Ragland – Judge Must not say “Must”

D was tried for armed robbery and weapon possession. The Judge instructed the jury, “if he had possession of a gun in the robbery, then you MUST find D guilty. He was found guilty and on appeal says use of word MUST conflicted with jury’s nullification power and Judge should have informed jury of nullification power.

RULE: The judge was wrong to say “must”, however, judges should not inform jury of right to nullify.

Telling juries about nullification would just encourage nullification; right of nullification is a power, not an essential attribute, and we shouldn’t encourage jurors to do whatever they want.

d. proof of guilt at trial (continued)…

2. Enforcing the Presumption of Innocence

Owens v. State

Facts: Owens found behind wheel of car parked in a driveway with motor running and lights on. A state trooper found the man asleep with several open and empty containers of alcohol in his automobile. Owens was clearly intoxicated. Trial court, without jury, convicted him of drunken driving on this circumstantial evidence.

Issue: Was there a reasonable hypothesis of innocence that prevents Owens from being convicted of drunken driving in a case based exclusively on circumstantial evidence?

Holding: No, there was not. Conviction affirmed.

C/L RULE: “A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.”

RULE: Prosecutor must overcome the presumption of innocence in order to convict. Here, there is a tiebreaker that allows jury to find him guilty.

Owens could not be convicted of drunken driving on a private highway. However, there are only two choices: either he drove to the driveway and parked, or was about to drive away. If he drove and parked, then he is guilty of drunken driving on a public road. Court must find a tiebreaker to decide which possibility is more likely. Appellant’s residence address is unknown, therefore it cannot be used.

It is, however, not likely that one would drink to excess in one’s house, and then walk to one’s car, with empty cans, turn on the lights and motor, and then pass out. Moreover, the state trooper approached the vehicle after being called there to investigate a suspicious vehicle. Not likely to receive such a call if appellant was at his home.

*The totality of these circumstances are inconsistent with a reasonable hypothesis of innocence.


4. When an appeal court is faced with insufficiency of evidence appeal, it must assume the jury found all facts in favor of the prosecution. Therefore, the appeal is whether “a rational trier of fact could reasonably have reached the result that it did.”

Chapter 2. principles of punishment

Classes 2-3 pp. 29-48; pp. 69-81

Syllabus: [Theories of Punishment; Proportionality of Punishment]

A. theories of punishment

1. In General

Two justifications for punishment: RETRIBUTIVE (i.e., the person deserved it) and utilitarian (i.e., punishment serves a useful purpose).

Retributivism – People ought to be punished because they deserve it.

Utilitarianism – Punishment has useful purposes.

Questions to ask on sentencing; its objectives:

protect to society

punish def for committing a crime?

Encourage def to lead law abiding life

Deter others

Isolate def so she can’t commit more crimes?

Uniformity in sentencing?-

Uniformity in sentencing impossible due to factual differences in crimes

Notes & Questions

1. Characteristics of punishment: First, it is performed by and directed at agents who are responsible in some sense. Second, it involves designedly harmful or unpleasant consequences. Third, the unpleasant consequences usually are preceded by a judgment of condemnation; the subject of punishment is explicitly blamed for committing a wrong. Fourth, it is imposed by one who has authority to do so. Fifth, it is imposed for a breach of some established rule of behavior. Sixth it is imposed on an actual or supposed violator of the rule of behavior.

2. Retributivism is backward looking: the justification for punishment is found in the prior wrongdoing; seeks to correct past wrongs; Utilitarianism is forward looking in the sense that punishment is justified on the basis of the supposed benefits that will accrue from its imposition; seeks to prevent future wrongs.


Questions to ask:

a. Protection to society

b. Punish D for committing a crime?

c. Encourage D to lead law-abiding life?

d. Deter others

e. Isolate D so she can’t commit more crimes?

f. Uniformity in sentencing?

g. Uniformity in sentencing impossible due to factual differences in crimes

A. theories of punishment (continued)…

2. Utilitarian Justifications

Bentham’s Theory

Humans are governed by pleasure and pain: thus a legislature can threaten to inflict pain only when it promotes human/societal happiness better than possible alternatives.

Principle of utility: That which approves or disapproves of every action according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question OR to promote or to oppose that happiness.


n benefit from bodily security)

Hampton: Advocates victim vindication. By punishing someone, you don’t merely “take them down a notch”, but you also show to the society at large that all people have equal worth despite the implicit assertion to the contrary that comes with a criminal action.

Hampton argues that retribution should reestablish social equality between wrongdoer and victim, with criminal’s claim of superiority to victim denied by judicial mechanisms.

Hampton advocates more or less an “eye for an eye” approach to choosing the amount of punishment necessarily to reassert the victim’s equal worth. Punishment is carried out as an assertion of morality in itself.


Dressler divides retributivism into two branches:

1. Negative retributivism – An innocent person ought not be punished

2. ‪Positive retributivism

a. Assaultive – e.g. Stephen, hating criminals

b. Protective – e.g. Morris, criminals have the right to be punished

C. Proportionality of punishment

1. General Principles

Two types: cardinal and ordinal

Cardinal Proportionality: severity of punishment must match gravity of crime

Ordinal Proportionality: ranks crimes in terms of their relative seriousness

Kant: Retributive theory argues for eye-for-an-eye

Bentham: laws should be instituted in order to limit mischief, both in the number of acts committed and in the extent to which those acts are taken.

1. Punishment must outweigh the profit from the offence

2. The greater the mischief of the offence, the greater the punishment

3. Punishment for a greater offence should be such that it will induce a man to commit

the lesser offence.

4. The punishment should be adjusted in such manner to each particular offence that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.

5. The punishment ought in no case to be more than what is necessary to bring into conformity with the rules here given.

C. Proportionality of punishment (continued)…

2. Constitutional Principles

Summary: Courts invoke strict proportionality in death cases, not prison time.

2 kinds of Proportionality

Cardinal: proportionality in an absolute sense (severity of punishment must match severity of crime)

Ordinal: ranking crimes in terms of their relative seriousness

VII Amendment: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” This included punishments of excessive length and severity out of proportion to the offence charged.

The Court addresses the proportionality of sentences falling within two general classifications:

1) Involves challenges to the length of term-of-years sentences given all the circumstances in a particular case.

2) Cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.

Cardinal Proportionality: severity of punishment must match gravity of crime

Coker v. Georgia (1977) held that the death penalty for rape is unconstitutional by the 8th Amend.

Burger and Rehnquist, dissented on the grounds that death is disproportionate for minor crimes, but rape is not a minor crime.

Ordinal Proportionality: ranks crimes in terms of their relative seriousness

Harmelin v. Michigan (1991) held that 8th Amend contains no proportionality guarantee (i.e., except in cases involving the death penalty, a legislature can impose just about any penalty for any serious crime that it wants).

Coker v. Georgia – Death penalty is a disproportionate punishment for rape, and is thus cruel and unusual.

General RULE: The death penalty is a constitutional form of punishment because it is not a cruel and unusual punishment under the 8th Amendment. The death penalty passes the test identifying unconstitutional punishments for being cruel and unusual. 1) It is not inherently barbaric or an unacceptable mode of punishment for crime; 2) It is not always disproportionate to the crime for which it is imposed.

Jury is asked to weigh the ACs against the MCs: if the ACs are outweighed by MCs, the punishment need not be imposed.

Aggravating circumstances: conditions constituting the justification of sustaining or increasing the degree of moral culpability or punishment.

Mitigating circumstances: conditions not constituting justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree” of moral culpability or punishment.

Constitutional RULE: The 8th Amendment bars punishments that are “barbaric” as well as those that are “excessive” in relation to the crime committed.