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Criminal Law
Rutgers University, Newark School of Law
Bergelson, Vera

Criminal Law
The Determination of Criminal Guilt
I.           Proof Beyond a Reasonable Doubt
A.      In Re Winship
1.       Court held that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.
2.       Reasons for the holding?
a.       reduces the risk of convictions resting on factual error
b.       commands the respect and confidence of the community in applications of criminal law
c.        individuals do not fear improper prosecution
d.       value determination that it is far worse to convict an innocent man than to let a guilty man go free – distinguishes criminal standard from civil standard
B.      Mullaney v. Wilbur (S.C. 1975) – D was charged with murder. Trial court instructed jury that if state proved that D killed the victim unlawfully and intentionally, then it was murder. If D persuaded jury that the killing was in the heat of passion on sudden provocation, then it was manslaughter. Supreme Court held that instructions violated Winship.
1.       Court held that the due process clause required state not only to prove that D was guilty of criminal homicide, but also to persuade the jury regarding the facts relating to D’s degree of criminal culpability.
2.       Once a defendant satisfies his burden of production regarding an affirmative defense, the prosecution is constitutionally required to disprove the defense.
C.      Patterson v. New York (S.C. 1977) – D was charged with murder. He believed he was guilty of manslaughter because of extreme emotional disturbance. N.Y. homicide statute required proof of 3 facts: (1) human death; (2) that the accused caused it; and (3) that the accused intended the result. The statute explicitly made extreme emotional disturbance an affirmative defense. D argued that Mullaney invalidated the statute because the law permitted the prosecutor to shift to him the burden of proving his lesser level of culpability due to extreme emotional disturbance. Supreme Court upheld the statute.
1.       Court rejected reading of Mullaney that construed the due process clause to require the prosecution to prove any fact affecting the defendant’s degree of criminal culpability on the grounds that it was unduly restrictive of legislative authority to allocate burdens of proof.
2.       Court reasoned that if it endorsed that broad reading, legislatures would be inclined to repeal defenses, or at least not broaden them.
3.       Under the due process clause, the prosecution is required to prove every element in the definition of an offense, but the legislature may, if it chooses to do so, allocate to the defendant the burden of persuasion regarding non-elements, i.e., defenses.
D.      Analysis of Winship, Mullaney & Patterson
1.       In view of underlying values of the due process clause enunciated in Winship, strong case that, since prosecution is required to prove the elements of an offense, even if the crime is a trivial one that will not result in substantial incarceration or stigma, it should also be required to prove the degree of a person’s guilty.
2.       Mullaney and Patterson worried about restricting legislative prerogatives.
3.       Practical effect of Patterson is to permit legislatures, at least under the aegis of the due process clause, to avoid most of the restriction of Winship by redrafting their statutes to treat the absence of what previously had been an element of an offense as an affirmative defense.
E.       What is Proof Beyond a Reasonable Doubt?
1.       “It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge … .” (C.J. Shaw in Commonwealth v. Webster)
2.       Critical language is that the jurors have an “abiding conviction” – a “settled and fixed” conviction – of the defendant’s guilt.
F.       The Model Penal Code (§§1.12-13)
1.       Prosecutor is not required to disprove an affirmative defense “unless there is evidence supporting such defense.” It does not specify the strength of the evidence required to satisfy the defendant’s burden of production.
2.       General rule regarding the burden of persuasion is that the prosecution must prove every element of an offense beyond a reasonable doubt.
3.       The term “element” as used in the MPC includes conduct that “negatives an excuse or justification” for the action. MPC allocates to the prosecution the duty to disprove defenses, assuming that the defendant has satisfied his burden of production. This does not apply to defenses that the MPC expressly requires the defendant to prove by a preponderance of the evidence.
II.         Plea Bargaining
A.      Why do Prosecutors Bargain?
1.       avoids risk of defeat at trail – “odds bargaining”
2.       efficiency: dispose of giant caseload; save money and work – “cost bargaining”
3.       want to be a nice guy; do the right thing
B.      Why do Defense Lawyers Bargain?
1.       want to limit the sentence; avoid the risk of defeat – “odds bargaining”
2.       want to be a nice guy; maintain good working relationship with prosecutor
3.       give up the right to inflict costs on taxpayers in exchange for better sentence
III.      Evidence
A.      People v. Zackowitz (N.Y. Ct. App. 1930) – D was convicted of first degree murder and sentenced to death. The issue before the court was whether D’s possession of three pistols and a teargas gun (which were not the murder weapons) should be admissible evidence. Put another way, can the state by itself make character an issue in a criminal prosecution.
1.       Court held that character is never an issue in a criminal prosecution unless brought into issue by the defendant.
2.       Other crimes may not be introduced in order to show that the accused had an evil disposition and thus was more likely to have committed the offense charged.
B.      Standard for Admitting Evidence in a Criminal Prosecution
1.       Only relevant evidence is admissible. Evidence is considered relevant if it is probative and material.
a.       evidence is probative if it tends to establish the proposition for which it is offered – if the proposition is more likely to be true given the evidence than it would be without the evidence
b.       evidence is material if the proposition that the evidence tends to prove is one that will affect the outcome of the case under applicable law
2.       The rules relating to privilege give individuals the right to withhold certain kinds of testimony, often to protect particular interests of a witness or specially important relationships with others.
3.       Evidence is considered prejudicial only when it is likely to affect the result in some improper way.
a.       prejudice is involved if the jury is likely to overestimate the probative value of the evidence or if the evidence will arouse undue hostility toward one of the parties
4.       The impeachment exception allows prior crimes evidence to be admissible to impeach a defendant’s credibility – not bearing on guilty or innocence, only on his credibility.
C.      Character Evidence and Other-Crimes Evidence
1.       Generally, however relative or probative it may be, evidence of past convictions is not admissible to prove a certain character or propensity.
2.       Evidence of character is not always irrelevant, but in the setting of the jury trial, the danger of prejudice outweighs the probative value.
3.       The central point is that other-crime evidence may be admissible if it is offered for some specific purpose other than that of suggesting that the defendant may have committed the crime because he has a bad character. 
4.       Signature exception: evidence of other crimes committed by the defendant is admissible when the other crimes “are so nearly identical in method as to earmark them as the handiwork of the accused – the device used must be so unusual and distinctive as to be like a signature.
a.       the test is that the method employed in the commission of both crimes must be so unique that mere proof that an accused committed one of them creates a high probability that he also committed the act charged
5.       In order for evidence to be admissible, the facts necessary to make that evidence relevant need not be proved beyond a reasonable doubt. Proof of those facts by a preponderance of the evidence is sufficient.
IV.       The Role of the Jury
A.      Right to a Jury Trial
1.       Duncan v. Louisiana (S.C. 1968) – D denied a jury trial in a battery offense, a misdemeanor punishable by two years’ imprisonment and a $300 fine. D was convicted and sentenced to 60 days and a $150 fine. Court held that there was a right to a jury trial.
a.       Court held that the 14th Amendment guarantees a right to a jury trial in all criminal cases which – were they to be tried in federal court – would come within the 6th Amendment guarantee.
b.       A right to a jury trial is granted to criminal defendants in order to prevent oppression by the government. Provisions reflect a fundamental decision about the exercise of official power – reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.
c.        Court acknowledged that there are petty crimes not subject to the 6th and 14th Amendments, but a crime punishable by up to 2 years’ imprisonment is not one of them.
B.      Jury Nullification
1.       United States v. Dougherty (D.C. Cir. Ct. App. 1972) – Appellant argued that the judge erroneously refused to instruct the jury of its right to acquit appellants without regard to the law and the evidence, and refused to permit appellants to argue that issue to the jury. Court disagreed.
a.       The prerogative is reserved for the exceptional case, and the judge’s instruction is retained as a generally effective constraint.
b.       It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns.

nd the Model Rules
1.       Both require disclosure by counsel of client perjury. At a minimum, the attorney’s first duty is to attempt to dissuade the client from the unlawful course of action.
2.       What are options instead of presenting perjured testimony?
a.       try to talk the client out of lying
b.       try to withdraw from the case
c.        free-narrative approach
The Determination of Criminal Punishment
I.      The Goals of Punishment
A.      Utilitarianism/Deterrence (formulated by Bentham) – pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction in the pain of crime that would otherwise occur.
1.       Humans are rational actors – balance the expected benefits of the proposed conduct against its risks, considering such factors as the likelihood of successful commission of the crime, the risk of detection and conviction, and the severity of the likely punishment.
2.       The rational actor will avoid criminal activity is the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards).
3.       No matter how egregious the wrongdoing, utilitarians do not advocate punishment unless they believ it will provide an overall social benefit.
4.       General deterrence – a person is punished in order to convince the general community to forego criminal conduct in the future.
a.       the person is used as a means to a desired end, namely, a net reduction in crime
b.       person’s punishment teaches us what conduct is impermissible
c.        person’s punishment instills fear of punishment in would-be violators of the law
5.       Specific deterrence – a person is punished to deter future misconduct by that person.
a.       deterrence by incapacitation – imprisonment prevents him from committing crimes
b.       deterrence by intimidation – punishment reminds him that if he returns to a life of crime, he will experience more pain
B.      Retribution – punishment is justified when it is deserved.
1.       Looks backward and justifies punishment solely on the basis of the voluntary commission of a crime.
2.       Based on the view that humans possess free will, and therefore, may justly be blamed when they choose to violate society’s mores.
3.       Assaultive retribution – it is morally right to hate criminals. Because the criminal has harmed society, it is morally right to hurt him back.
4.       Protective retribution – punishment is a means of securing a moral balance in the society.
a.       society is made of rule, and as long as everyone follows the rules, an equilibrium exists – everyone is similarly benefited and burdened
b.       if a person fails to exercise self-restraint, he destroys the balance and becomes a free-rider – he benefits from the system of rule without accepting the same burdens
c.        by punishing the wrongdoer, society demonstrates its respect for him – society treats him as a responsible moral agent
d.       punishment permits the offender to pay his debt to society and to return to it free of moral guilt and stigma
5.       Victim vindication – by committing an offense, a criminal implicitly sends a message to the victim and society that his rights and desires are more valuable than those of the victim. Punishment corrects this false claim – it reaffirms the victim’s worth as a human being in the face of the criminal’s challenge.
C.      Rehabilitation – prefer to use the correctional system to reform the wrongdoer rather than to secure compliance through the fear of punishment
1.       Rehabilitative model preserves the concept of redemption evident in Judeo-Christian values.
D.      Mixed Theories of Punishment
1.       Hybrid system – unwilling to punish an innocent person, even if it could be justified on utilitarian grounds.
2.       “Negative retributivism” – principle that guilt is a necessary condition of punishment.
3.       In determining how much pain should be inflicted, advocates of hybrid system would punish a wrongdoer to the extent justifiable under utilitarian, rather than retributive principles.