Rutgers Newark – Francione Criminal Law Outline Fall 2009
NATURE OF A CRIME – Criminal Law – is a system of cultural meaning and a reflection of Anglo – American moral culture. Yet it is also part of the legal system. It is both the study of what is and what ought to be.
The Aims of Criminal Law (Henry M. Hart, Jr.)
Series of directions, or commands. Mostly “must not’s” but some “musts” i.e.. Pay taxes
Commands are taken as valid and binding upon everyone within their terms even if not formulated in advance as a single set of words. Also, the commands are for the community by the community.
Commands subject to sanctions for which the community will enforce.
Criminal action constitutes an action that will incur a moral condemnation of the community (It’s a moral statement about your unacceptability)
What distinguishes a criminal from a civil sanction is the judgment of community condemnation which accompanies and justifies its imposition
Sources of Criminal Law
Common Law – judges (criminal law used to solely be common law)
Modern Penal Code/Statutes – No state has accepted MPC in its entirety, but most include it
California mostly common law
NY mostly MPC
Justifications for Punishment
Traditional Moral Reasoning
Consequentiality – actions are morally right only if they result in desirable consequences
Utilitarianism – primary consequentialist theory of punishment, look forward at the predictable effects of punishment on offender and society
Nonconsequentialist – Actions are morally right or wrong within themselves, regardless of consequences
Retributivism – primary nonconsequentialist theory of punishment, typically look backwards at harm cause by crime and calibrate the punishment to the crime.
Benefits and Burdens: wrongdoer unjustly gets a benefit when society gets the burden; punish to restore moral equilibrium
Punishment as Defeat: shows criminal that his rights are not greater than the victim’s rights. Restores equilibrium.
5 Justifications – Only the prisoner’s actual time spent in jail can test and clarify the concepts of punishment
Incapacitation: (keep defendant away from society, jail) – render a person inclined to crime, harmless to society
Retribution: (giving defendant what he deserves) – intentional infliction of pain and suffering on a criminal to the extent that he deserves it for willingly committing a crime
Today retribution has become proportional punishment because one cannot recreate the suffering on the person through “eye for an eye”
General Deterrence: (punish to deter others) – Example of a criminals pain and suffering as a deterrence to future criminals
Specific Deterrence: (punishment to deter defendant from crime) – memory of one’s own incarceration to deter thy self from committing another crime.
Rehabilitation: (reforming defendant through training etc.) – acquisition of skills or values which convert a criminal into a law-abiding citizen
Dilemma of Expressive Punishment
Why Punishment must be expressive
Punishments should educate criminals and express the public’s moral indignation aroused by crime. This public contempt for the criminal gives the expressive element necessary to separate punishment from some other physical hardship
Kahan and Lang on Punishment- alternative sanctions lack power to express condemnation like incarceration can. Also, alt. like fines may express the idea that “you may do what you have done if you pay for the privilege.” Kahan believes in shaming the criminal to allow the criminal to feel the condemnation of society.
Why Punishment is not expressive
Audiences of messages are undefined and confused
Problem of Audience- more severe punishments (are up to judges) gangs may hear of it, judges may not write a reason for more severe punishment, press may misconstrue the event, public may feel vindicated, too many uncertainties.
Speakers are complex and obscure the intent of the message.
Messages are inconsistent and sometimes contradictory:
Structural limitations of punishment as a kind of language
Inconsistencies in the way that punishment is applied
Means of punishment often similar to the actions it wishes to condemn
Historically Male, black, poor all receive harsher punishments than white, female, rich etc.
Presumption of Innocence and Proof Beyond Reasonable Doubt
Burden of Proof – Prosecutor must establish defendant’s guilt, it’s the reason they go first in trial
Burden of Production – the burden to introduce enough evidence so there is a jury question, for criminal “could a reasonable jury find beyond reasonable doubt that this defendant committed this crime”
Burden of Persuasion – have you succeed in getting the jury to buy your story
Standard of Proof – level of certainty the fact-finder must reach before ruling for the plaintiff, also known as “beyond reasonable doubt” – beyond doubt that a reasonable person cannot say they are firmly convinced of the defendant’s guilt
Civil – Is it more likely than not that the conduct under those circumstances caused the damage (51%)
Criminal – Beyond a reasonable doubt – you cannot define reasonable; these are normative concepts that apply in different ways according to who is applying them.
Prima Facie defense – prove reasonable doubt
Affirmative Defense – admit crime but argue for extenuating circumstances (preponderance of evidence standard)
Standard of Review – judge decides if jury could decide that the plaintiff has proven his case beyond a reasonable doubt, gives prosecution benefit of doubt. If not judge will give directed verdict of acquittal.
ELEMENTS OF A CRIME – Actus Reus—Mens Rea—Causation—Concurrence
Actus Reus – voluntary act (or omission when there is a legal duty to act) that results in some kind of social harm
Model Penal Code § 2.01(1) – A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
Don’t Punish thoughts
Can’t punish for just thoughts, but can increase punishments for crimes done with intent because of beliefs – Wisconsin v. Mitchell – hate crime statutes are legal because motivating factor of crime has always been an important factor in sentencing, and race based crimes have more social harm(pg 143)
Abstract offensive beliefs cannot be taken into account – if you beat up a black guy it must be proven you beat him up because he’s black. Even if you hate black people, if he said something to your GF that’s not enough for hate crime, you beat him up because of the GF incident.
Has to be voluntary
Martin v. State (Δ was incorrectly convicted being drunk in a public place) – Δ did appear in public place while seemingly drunk and used foul language. However, the word “appearance” in the statute presupposes that presence be voluntary. Since Δ was brought out by the arresting police officers involuntarily, he is not guilty. (p.146)
People v. Decina – Δ was aware of his epileptic condition and could reasonably foresee that if he drove, he could get into an accident. Therefore, he is liable. (p.148)
An act not an omission – Don’t have to sa
with respect to each Material Element of the offense:
Proscribed conduct – law prohibiting “driving under the influence of alcohol”
Attendant circumstances – facts that must be in existence at the time of the actor’s conduct, or at the time of a particular result, w/o which the conduct or result is not a crime.
i.e. age of victim, intoxicated, sexual intercourse by a man with a woman does not constitute C/L rape unless the victim is a “woman, not his wife”, and that she did not consent.
Result of conduct – social harm of murder is death
Historical Development:
Regina v. Cunningham (Court of Criminal Appeal 1957) – Appellant found guilty after he ripped out his neighbor’s gas meter because he needed money which released gas that partially asphyxiated the neighbor. The statute required the action of defendant to be malicious. The court reversed conviction because the judge incorrectly instructed jury that if they felt he acted wickedly, then it was malicious. However, decision on what malicious is should be left to jury. Malice is not merely wickedness, but either an “actual intention to do the particular kind of harm” or “recklessness as to whether such should occur.
Problems of Statutory Interpretation
United States v. Yermian (Supreme Court of US 1984) – D lied on a questionnaire to gain secret gov’t clearance. Charged with making false statements to gov’t agency. At trial, respondent admitted having actual knowledge of the falsity of the statements, but requested a jury instruction requiring the Government to prove not only that he had actual knowledge of the falsity but also that he had actual knowledge that the statements were made in a matter within the jurisdiction of a federal agency.. Supreme court ruled that the history of legislative language shows that the part of statute that says false statements in any matter within jurisdiction of dept of US is only a jurisdictional requirement (so that it is known when it is of federal concern). Therefore no basis for requiring proof that D had prior knowledge of federal agency jurisdiction. Dissenting opinion felt that one can guess what was meant by legislature but it can in no way be convincing. Therefore should be lenient where ambiguity lies.
MPC would have decided same way because
To decide by material elements go to 2.02. 4, that says it applies to all material elements.
However in definition section material element excludes jurisdiction.
So, the guy is guilty. Because Knowingly and willingly cannot modify jurisdiction, making knowingly only affect whether you knew you were lying on a federal document
Holloway v. US (Supreme Court of US 1999) – Holloway was charged with three counts of carjacking. He testified he would have used his gun “if any of the drivers gave him a hard time.” The jury was instructed that the requisite intent under law may be conditional and the government would have
