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Criminal Law
South Texas College of Law Houston
Moses, Ray E.




Criminal Law: Introduction

An Overview

Nature of Criminal Law

The study of the criminal law is the study of crimes and the principles of criminal responsibility for those crimes.

Comparison to Civil Wrongs

Unlike torts and contracts, the criminal law involves public law.

Although the direct and immediate victim of a crime typically is a private party (e.g., the person who is robbed, assaulted, or kidnapped) and other individuals are more than a private injury.

A crime causes “social harm,” in that the injury suffered involves “a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity”—for this reason, crimes in the United States are prosecuted by public attorneys representing the community as whole, and not by privately retained counsel.
A person convicted of a crime is punished.

“The essence of punishment…lies in the criminal conviction itself,” rather than in specific hardship imposed as a result of the conviction.
The hardship suffered as a result of the criminal conviction may be not greater or even less than that which results from a civil judgement.

Example: a person who lacks substantial financial resources might prefer to spend a few days in jail as punishment for an offense than to pay a civil judgement of $10,000 — the latter is likely to feel like a much more severe hardship. And, it is not the case that om a civil proceeding can never result in a loss of liberty: a mentally ill person who has committed no crime, may, in a civil proceeding, be committed involuntarily to a mental institution, and so-called “sexual predators” may be confined “civilly,” due to their perceived dangerousness to the community.

The distinguishing factor that separates criminal law from its civil counterpart, or at least should be, is the societal condemnation and stigma that accompanies the conviction.
When a person is determined to be guilty of a criminal offense, the resulting conviction is an expression of the community’s moral outrage, directed at the criminal actor, for her act.

A crime might properly be defined as “an act or omission and its accompanying state of mind, which id duly shown to take place, will incur, a formal and solemn pronouncement of the model condemnation to the community.”

Classification of Crimes

The Common Law divided crimes into two general categories: felonies and misdemeanors.

A felony—”comprised every species of crime which occasioned at common law the forfeiture of lands and goods.”

ALL common law felonies were punishable by death.
The list of felonies was short: felonious homicide (later divided by statute into murder and manslaughter), arson, mayhem, rape, robbery, larceny, burglary, prison escape, and (perhaps) sodomy.

All other criminal offenses were misdemeanors.

In modern penal codes—an offense punishable by death or imprisonment is a felony; an offense for which the maximum punishment is a monetary fine, incarceration in a local jail or both, is a misdemeanor.

The Model Penal Code (MPC) divides felonies into degrees for sentencing purposes.

Some states have added additional classification of crimes to include violations or infractions—these offenses encompass misconduct so minor that incarceration is prohibited.

Principles of Criminal Responsibility

The study of criminal law is much more than the study of crimes.
It is also the investigation of the doctrines that have developed over the centuries for determining when a person may be justly be held criminally responsible for the harm that she caused.

The principles of criminal responsibility (the core of the criminal law) identify the point at which it is believed fair to go from the factual premise—”D caused or assisted in causing X (a social harm) to occur,” to the normative judgement, “D should be punished for having caused or assisted in causing X to occur.”

Proving Guilt At Trial

ight to Trial by Jury

In General

The Sixth Amendment of the Constitution provides: “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 is “fundamental to the American scheme of justice,” and therefore applies in all criminal proceedings, both state and federal.
The right is granted “in order to prevent oppression by the Government…If the defendant prefer[s] the common-sense judgement of a jury to the more tutored and perhaps less sympathetic reaction of a single judge, he [is] to have it.”
A criminal defendant has a constitutional right to a trial by jury in all felony and many misdemeanor prosecutions.

Scope of the Right

In the Federal courts, and nearly all states, a jury in a felony criminal trial is composed of 12 persons who must reach a unanimous verdict to convict or acquit.

Juries as small as six, are still constitutional.
State laws permitting non-unanimous verdicts are also allowed, as long as the vote to convict represents a “substantial majority” of the jurors.

A defendant is entitled to a jury drawn from a pool of persons constituting a fair cross-section of the community.

The Sixth Amendment is violated if large, distinctive groups of persons, such as women, racial minorities, or adherents of a specific religion are systematically and unjustifiably excluded from the jury pool.

Burden of Proof

The Due Process Clause of the United States Constitution require the prosecutor in a criminal trial to persuade the fact finder “beyond a reasonable doubt of every fact necessary to constitute the crime…charged.”

Jury Nullification

The Issue

Should jurors “nullify” the law if they feel there are justifications for doing so?

Jurors have the raw power to nullify the law

Two interrelated factors make this possible— (1) a jury ordinarily returns a “general verdict—guilty or not guilty. (2) A jury is not required to explain or defend its verdict. Because the government cannot reprosecute a defendant for the same crime after a not guilty verdict, the jurors have the ability to acquit a defendant—leaving the government powerless to reprosecute.

The Debate

Jury nullification has been the subject of much debate—advocates point out that the trial-by-jury constitutional right is recognized in order to protect against governmental oppression, and to provide the accused with the common sense judgement of lay people.
2The jury-nullification power serves as the communities safeguard against what jurors believe are morally unjust or socially undesirable criminal convictions—criminal convictions that law-trained judges might impose.

Critics of jury nullification respond that juries should not exercise their raw power to nullify the law—jurors take an oath before they are empaneled to obey the judge’s instructions on the law. If jurors ignore the law out of sympathy for the defendant, lack of compassion for the victim, or dislike for the governing law, the jurors have violated their sworn oath. To require jurors to take such oath and yet recognize jury nullification “would confuse any conscientious citizen serving on a jury.”

Examples of malignant nullification—such as southern juries in the 1950’s that refused to convict white men for lynchings and other murders of civil rights workers, despite overwhelming evidence of guilt.

The Law

The issue of jury nullification arises in various contexts.

The judge might instruct the jury that, if it finds

s far as possible, all painful or unpleasant events.

To a utilitarian, both crime and punishment are unpleasant and therefore, normally undesirable occurrences.
In a perfect world, neither would exist.

Pain inflicted by punishment is justifiable if, but only if, it is expected to result in a reduction in the pain of a crime that otherwise would occur.

the imposition of five units of pain (however the “units” are measured) on D is only justifiable if it will prevent more than five units of pain (in the form of pain or other undesirable consequences) that would have occurred but for D’s punishment.

A person will act according to his immediate desires to the extent that he believes that his conduct will augment his overall happiness.

A person will avoid criminal activity if the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards).

Forms of Utilitarianism

General Deterrence—D is punished in order to convince the general community—more particular, potential criminal offenders—to forego criminal conduct in the future.

D’s punishment serves as an object lesson to others; D is used as a means to the desired end of net reduction in crime. D’s punishment teaches us what conduct is impermissible; it instills fear of punishment in would-be violators of the law; and, at least to some extent, it habituates us to act lawfully, even in the absence of fear and punishment.

Individual (Specific) Deterrence—D’s punishment is meant to deter, specifically, D’s future misconduct by intimidations. By punishing D—by inflicting pain and suffering upon him for his criminal actions—we provide a clear reminder to him of the risks of future offending. Scared Straight.
D’s imprisonment prevents him from committing crimes in the outside society during the period of segregation.
Rehabilitation (or reform)—advocates of the model prefer to use the correctional system to reform the wrongdoer rather than to secure compliance through the fear or “bad taste” of punishment.

Basic Principles

Punishment is justified when it is deserved.

It is deserved when the wrongdoer freely chooses to violate society’s rules.
The wrongdoer should be punished, whether or not it will result in the reduction of crime.
Eye for an eye—an offender should suffer in proportion to [his] desert or culpable wrongdoing.

Forms of Retributivism

Assaultive Retribution, Public Vengeance, or Societal Retaliation—it is morally right to hate criminals. Because the criminal has harmed society, it is right for society to “hurt him back.”
Protective Retribution—punishment is not inflicted because society wants to hurt wrongdoers, as will assaultive retribution, but because punishment is a means of securing moral balance in the society.

If a person fails to exercise self-restraint when he could have—when he voluntarily renounces a burden that others have assumed—he destroys balance.

Victim Vindication—it reaffirms the victim’s worth as a human being in the face of the criminal’s challenge—represents the defeat of the wrongdoer. Once the criminal receives punishment proportional to the offense, the “score” is made even.