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Criminal Law
St. Johns University School of Law
DeGirolami, Marc O.

p. 1-19
“The Aims of the Criminal Law” by Henry Hart
·         Criminal law is a process – 5 characteristics of this process
o   Mostly “must not” commands (murder), but some “must” commands (pay taxes)
o   Commands spoken with the power and prestige of the community behind them
o   Sanctions for breaking the commands
o   Social condemnation by the public à the necessary component to separate crimes from civil wrongs according to Hart
o   Punishment
·         What separates civil wrongs and criminal wrongs? Gardner – “it is the expression of the community’s hatred, fear or contempt for the convict which alone characterizes physical hardship as punishment” OR “conduct which, if  duly shown to have taken place will incur a formal and solemn pronouncement of the moral commendation of the community”
o   “Note 1 – Perkins & Boyce – crime = “any social harm defined and made punishable by law”
o   Note 2 – difference between civil and criminal have been blurred recently
·         “treatment” is more PC than “punishment”
·         Note 3 – criminal law has its origins in English common law, but in the late 1800’s legislators started enacting criminal statutes and have never stopped
o   Note 4 – Professor Hart’s 4 conditions to make sure criminal statutes are enforced
§  1) the primary addressee who is supposed to conform his conduct to the direction must know
·         (a) of its existence
·         (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
§  4) he must be willing to do so
o   Note 5 – Constitutional Limitations on legislators power
§  No ex post facto legislation: Article I, Sec 9 and 10
§  Cruel + unusual punishment: Eighth Amendment
§  No deprivation of life, liberty or property without due process: Fifth and Fourteenth Amendments
o   Note 7 – Model Penal Code
§  Problems with older criminal statutes
1.      Not all common law crimes and defenses codified
2.      Statutory schemes were silent on certain essential penal doctrines
3.      Overlapping and conflicting statutes
Codes applied internally inconsistent principles
§  MPC developed in 1952, adopted by many states in whole or part
“Criminal law in a Procedural Context: Pre-Trial”
·         Reporting of the crime
·         Investigation by the police
·         Probable cause to arrest
·         Preliminary hearing à ”information” OR grand jury à “indictment”
·         Pretrial motions
·         Possibly, a plea bargain
“Criminal law in a Procedural Context: Trial by Jury”
A.      Trial by jury guaranteed by sixth amendment (Sullivan v. LA [SCOTUS 1993] – all prosecutions for which the maximum potential punishment exceeds six months in prison require trial by jury)
B.      Duncan v. LA [SCOTUS 1968] – Those who wrote our constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority
C.      Federal juries usually consist of 12 people, but juries small as six permissible (less than six not permissible)
D.     Impartial jury created through voir dire
“Proof of Guilt at Trial”
1.      In re Winship [SCOTUS 1970] – “prosecutor must persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged”
a.       Harlan: reasonable doubt enhances risk that factually guilty people will be set free, but “it is far worse to convict an innocent man than to let a guilty man go free”
                                                                                       i.      Note 1 – Blackstone: it is better than ten guilty persons escape, than that one innocent man suffer
2.      Note 2 – Jackson v. VA [SCOTUS 1979] – jurors mind must be in a “subjective state of near certitude” of guilt
a.       Nevada judge’s attempts to quantify reasonable doubt are unconstitutional à reasonable doubt is inherently qualitative
b.      Note 3 à Cage SCOTUS: “substantial/grave doubt” is higher than reasonable doubt, thus unconstitutional
3.      Note 4 – different instructions
1.      Moral certainty
2.      Firmly convinced
3.      No waiver of vaciliation
4.      No real doubt
5.      Thoroughly convinced
TITLE:  Owens v. State (Maryland 1992)                                       p. 14-19 (w/ notes)
TOPIC:  Enforcing the Presumption of Innocence
FACTS: A police officer responded to a complaint of a suspicious vehicle. When he arrived on the scene, he found the Defendant unconscious behind the wheel of his truck. The truck’s engine was running, and its lights were on. Between the Defendant’s legs was an open can of beer. There were two other empty beer cans in the vehicle. The trooper stated that the Defendant smelled of alcohol, slurred his speech, and could not recite the alphabet. No eyewitness actually saw the Defendant driving his vehicle. The judge, sitting without a jury, convicted the Defendant of driving while intoxicated, and this appeal followed.
ISSUE: Is the Defendant’s conviction based on legally sufficient evidence?
HOLDING: Yes. Conviction affirmed.
RULE:  A conviction upon circumstantial evidence alone must be scrutinized to determine whether the circumstances are consistent with a reasonable hypothesis of guilt.
R.D.: “[A] conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” In other words, where the conviction is based solely on circumstantial evidence, without eyewitness testimony, the conviction cannot stand if the circumstances also can be explained by any reasonable means.
Here, the Defendant was passed out behind the wheel of a vehicle with its motor running. Either he drove to the spot where he was found or he had just gotten into the vehicle, started it up, and passed out before he could drive. The latter proposition, however, is not a reasonable hypothesis.
The presence of beer cans in the car leads one to conclude that he had been drinking in the car, and it is not reasonable for a person to leave his house, get in the car, start the engine, drink beer, and then pass out. Further, the car only contained three beers, which probably were not enough to induce unconsciousness, so the drinking is more likely to be at its end rather than the beginning. 
“The totality of the circumstances are inconsistent with a reasonable hypothesis of innocence.”
A.      Note 3: Motions for directed verdicts always follow the close of the prosecution’s case.  When does a judge grant a motion for a directed verdict and strip the jury of its fact finding job?
a.       Motion Granted:  If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal because no other result is permissible within the fixed bounds of jury consideration.
b.      Motion not granted: If a reasonable mind might fairly have a reasonable doubt or might fairly not have one, the case is for the jury, and the decision is for the jurors to make
B.      Note 4: no presumption of innocence on appeal – Jackson v. Virginia standard– only relevant question for appeal court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt
Jury Nullification
TITLE:            State v. Ragland [NJ 1986)                                                  p. 19-29 (w/ notes)
TOPIC:  Jury Nullification
FACTS: The Defendant was charged with various offenses, including armed robbery and possession of a weapon by a convicted felon. At the conclusion of trial, the judge instructed the jury that it “must” convict of the possession charge if it found that the Defendant possessed a weapon during the commission of the robbery. The jury convicted the Defendant of, among other things, armed robbery and possession of a weapon by a convicted felon, and this appeal ensued on the issue of whether the judge’s use of the word “must” deprived the Defendant of the jury’s nullification power, an essential attribute of his constitutional right to a jury trial.
ISSUE: Did the trial court improperly instruct the jury that it must convict of possession of a weapon by a convicted felon if it finds that the defendant possessed a weapon dur

nd utilitarianism is forward looking because the punishment is justified on the basis of the supposed benefits that will accrue from its imposition
2.      Utilitarian Justification
·         Jeremy Bentham – An Introduction to the Principles of Morals and Legislation
o   Two sovereign masters of human existence à pain and pleasure
o   Principle of utility approves or disapproves of every action [including gov’t actions] on the basis of whether it augments or diminishes happiness of the party whose interest in question
o   Legislators’ ends are 1) promotion of pleasure, and 2) avoidance of pain
o   Four circumstances to value pleasures and pains à 1) its intensity, 2) its duration, 3) its certainty or uncertainty, 4) its propinquity or remoteness
o   General objects of all laws must be to maximize pleasure and minimize pain
o   But all punishment is mischief; four circumstances where punishment ought not to be inflicted:
§  1) where it is groundless (where the act being prevented is not mischievous)
§  2) where it is inefficacious (where it lacks the power to produce a desired result)
§  3) where it is unprofitable/too expensive
§  4) where it is needless (where the mischief is prevented by itself or by a cheaper rate)
·         Kent Greenawalt – Punishment
o   Since punishment involves pain, it can be justified only if it accomplishes enough good consequences to outweigh this harm
o   Utilitarianism is often employed broadly to theories that likely consequences determine the morality of action
o   Beneficial consequences of punishment, according to a utilitarian:
§  General deterrence – people in general won’t commit crimes/mischief if they know they will be punished
§  Individual deterrence – punishment will teach actual offender the consequences of repeating his actions
§  Incapacitation/risk management – imprisonment removes the offender temporarily, and prohibitions keep dangerous stuff (i.e. guns) out of circulation
§  Reform – treating offenders can make them better citizens
·         Note 1 – Does punishment deter?
o   An increase in the detection, arrest and conviction rate is of greater deterrent consequence than an increase of the severity of the penalty upon conviction
§  Rational burglar – 95% chance of getting caught w/ 1 year prison term, or 5% chance of getting caught w/ 5 year prison term
o   Since punishment is only justifiable to the extent that that will result in a net benefit to society, punishment is only justifiable to the extent that the sentencing authority can reliably predict the future dangerousness of offenders
§  Studies show people are not good at accurately predicting future criminality
o   Three strikes laws (based on individual deterrence and general deterrence) have not been shown to reducing crime rates to the extent predicted
·         Note 2 – Rehabilitation
o   Fell out of favor because a) criticized as wastes of money and b) criticized as coddling criminals à study suggests reduces recidivism by about 10 percent, and if properly targeted the recidivism rate drops by 25 percent
o   C.S. Lewis (hardcore retributivist) criticizes rehab because it removes the criminal from the sphere of justice
·         Note 3 – Utilitarianism and punishment of the innocent
o   Kant (the Bentham of retributivism) criticizes utilitarianism because one man should never be used as a means to an end
o   Hypo: should sheriff sacrifice one black man to racist mob to save the entire black community?