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Civil Procedure I
St. Johns University School of Law
Sovern, Jeffery

2010 Fall
Criminal law comes from the people – we say what is a crime
§ Depends on perspectives
§ Not constant
§ If we have a right under Constitution, state lawmakers cannot make something a crime that infringes upon freedoms in the Constitution
Process: Charged à handcuffed à read Miranda rights à taken to station (HQ) à booked (fingerprints, photographs, police report) à interrogation, taken to Magistrate who informs him of rights and what charges are and asks if he can afford an attorney and appoints one and assigns bail (or detainment) à prosecutor obtains facts and files for indictment from the grand jury – only prosecutor goes before grand jury, no defendant, no need for exculpatory evidence à defendant is indicted–-> defendant arraigns on indictment à enters a plea of “not guilty”
Trial Process: Now trial process begins – defense lawyer might be thinking about pretrial motions, plea bargaining/negotiations, etc. àIf motions denied, trial date set à jury selected à prosecutor presents case à evidence presented à jury convened à sentenced by a judge à Can appeal
Criminal punishment: The imposition of hardship in response to misconduct; Punishments authorized in modern U.S. law include community service, monetary fines, Forfeiture of property, restitution to victims, confinement in jail or prison, and death.
Kansas v. Hendricks, 1997, State wanted to civilly confine people – Act was OK because it was a civil punishment, not a criminal punishment – no issue of double jeopardy
A. Two Schools of Thought
1.      Retributivist – eye for an eye
·         Immanuel Kant: you did the crime, now do the time – this is your ‘just deserts’ – backward looking (only cares about the past)
·         Limitations:
o   Punishment cannot be more severe than the severity of the offense
o   Assumes most of us voluntarily commit crimes
·         Believe there is only one punishment for killing another à death penalty
·         Criticisms:
o   Irrational, based on emotion, vengeance; Adds to suffering; Equivalence is easier said than done
2.      Utilitarian – greater benefit to society – net gain
·         Jeremy Bentham: look to the end result to see whether punishment is justified– punishment should be inflicted only if it prevents some greater harm or leads to some greater good
·         Punishment is evil no matter who is administering it
·         Only way to justify it is if punishment results in some greater benefit to society (such as reduction of crime) – only way to justify net harm to society, needs to balance out with a net gain
·         Forward looking – what’s the benefit to society?
·         Assumes we have mental calculators, we balance pleasure v. punishment
·         Deterrence
o   Specific– meant to discipline individual offender
o   General – meant to deter society/public
·         Incapacitation – locking up somebody to keep them from offending
·         Rehabilitation – treating people – idea has basically died
·         Criticisms:
o   So many of us are not rational
o   Treats defendants as means to an end
o   Does deterrence divorce form reality? – ignores substitution effects, perverse effects (i.e. putting bigger punishment on crack cocaine, sale of heroine goes up)
o   What if our happiness depends on letting some people go free?
o   Might utilitarianism support painless “rehabilitation”?
Mixing Theories
§ Why punish at all? Why punish in a particular case, a particular individual?
·         As individuals, we might have different theories for punishment for different crimes
·         How much to punish in a particular case?
United States v. Blarek (1998, p.4): “the case of the interior designers loitering money for a druglord”: specific deterrence, incapacitation and rehabilitation not applied – general deterrence does…sending out a message to the public
B. How Much to Punish?
`United States v. Gementera (2004, p.41): “the case where the guy had to wear a sandwich board for stealing mail”: D argued this punishment violated his 8th Amendment rights – it was to humiliate him – Court held that this was not cruel and unusual punishment; goals of general deterrence and rehabilitation.
People v. Mooney (1986, p.60): “the case where the kid, who was on drugs, shot 2 people in a small community” – community based sanction was OK – incapacitation not necessary; rehabilitation not necessary (or already happened); retribution (no one wants it); deterrence served by 600 hrs of community service.
*Ewing v. California (2003, p.47): “the case where he was sentenced to 25 years to life for stealing golf clubs”: three strikes rule is not grossly disproportionate; Ewing argues retribution – but court rules utilitarian – deterrence – design of the 3 strikes law is to ensure longer prison sentences and greater punishment for those who commit a felony and have a prior violent/serious felony conviction
            -Does this law lead to prosecutorial discretion?
-Does the law actually deter? – A criminal may think ‘why not commit a more serious crime if it’s 25 years to life no matter what?’
* BACKGROUND to Ewing*
Capital cases:
§ Coker v. Georgia (1977) – rape used to be punishable by death – court here said capital punishment for rape of adult woman disproportionate
§ Kennedy v. Louisiana (2008) – an issue the court did not address was about rape of someone other than adult women… what about child rape? Court said killing someone for child rape is grossly disproportionate
§ (Now we have death penalty for treason, premeditated murder)
Noncapital cases:
§ Rummel v. Estelle (1980) – mandatory life (with possibility of parole after 12 years) for petty thief with two prior theft convictions not disproportionate
§ Solem v. Helm (1983) – mandatory life without parole for “habitual offender” (drunk driving, three burglaries, passing bad check) disproportionate
§ Harmelin v. Michigan (1991) – mandatory life without parole for possession of 672 grams of cocaine with intent to distribute not disproportionate
·         Depends on who is on the Supreme Court – 5-4 decision
Stanley v. Georgia (1969, p.77): “the case where the guy was arrested for having lots of porn”: Court said you cannot punish for acts that are protected under the Constitution – 1st Amendment rights
State v. Saiez (1986, p.79): “the case where the guy had an embossing machine”: there are limits on police power – the means selected must have “reasonable and substantial relation to the object sought to be obtained and shall not be unreasonable, arbitrary, or capricious” – not guilty for just having the machine
Two Questions Must Be Asked:
A.        Does criminal statute infringe upon a constitutional right?
B.        Does criminal statute exceed upon the government’s police powers?
1.         Does it protect public health, safety, welfare or morals
2.         Is it ra

ion of the Model Penal Code
·         Justification is something society would want to encourage
·         Excuse is something society would want to discourage (i.e. protecting ourselves against a criminal)
What Makes a Crime?
§ MPC §1.02(1)(a): Voluntary conduct (an act or, where there is a duty to act, a failure to act, coupled with the requisite mental state) that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interest.
§ Actus Reus (bad act) + Mens Rea (guilty mind) = crime, unless there is a justification or excuse
§ Here’s a way to think about criminal liability:
·         Did defendant commit a voluntary act?
·         Did act fall within definition of the crime?
·         Did defendant have requisite mental state?
·         Notwithstanding the above, was the defendant justified?
·         If not justified, should his/her conduct be excused?
·         If justified or excuse, NOT GUILTY
*The Queen v. Dudley and Stephens (1881, p.192): “The case where the boys are stuck at sea and eat the weakest boy”: the two boys were charged criminally with the murder of other boy because you cannot murder someone and justify it – they have actus reus + mens rea – it was not necessary to kill the smaller boy
The Act Requirement
§ There has to be either an act or, in the rare case where there’s a duty to act, a failure to act (omission).
§ Act, not thoughts (standing alone)
§ Act, not status (standing alone)
§ And the act (or failure to act) has to be voluntary
§ The voluntary act must be connected to the charged offense
§ Offense Elements:
·         1. Conduct – verb – all offenses must have this element
·         2. Attendant Circumstance(s) – facts that have to exist
·         3. Result
·         Mens rea should be attached to each element (i.e. intent to enter, intent to be at night – but what the intent means differs)
·         i.e. “A person is guilty of robbery if, in the course of committing a theft, he inflicts serious bodily injury upon another.”
o   Conduct: Inflicts
o   Attendant Circumstances: Serious bodily injury, in the course of committing a theft, upon another person, person
o   Result: Bodily injury
·         i.e. “It is unlawful for any person 18 years of age or older to deliver any controlled substance to a person under the ager of 18.”
o   Conduct: Deliver
o   Attendant Circumstances: Controlled substance, person 18 years of age
o   Result crime? No
§ Offense vs. Defense
·         Person committed the offense – prosecution must prove every element of an offense beyond a reasonable doubt
§ Negating vs. Affirmative defenses
·         “I did not do the crime…” (element negating) – quasi offense
·         “I did the crime, but…” (affirmative defense)
o   Must have the intent