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Criminal Law
St. Johns University School of Law
Walker, Jeffrey K.

Criminal Law
Spring 2013
*Law is pretty straight forward; it is all abt applying facts to those rules/laws.
Theoretical Underpinnings
1.      Intro
a.       Mens Rea- intent
b.      Actus Reus- action/act
                                                              i.      To have a crime must have an act (intent not enough) →(act)
                                                            ii.      There must be harm (i.e. actual murder/your act) →        (harm)
1.      Must intend for harm
                                                          iii.      Must have intent to commit the act →                            (intent)
c.       Law is cause and effect focused
d.      What caused the death (bus or poison killed Dudley)
e.       For Murder must have: 1) Act 2)Harm 3)Intent 4)Causation
1.      However, look for exceptions (i.e. certain defenses- insanity)
f.       Attempts
                                                              i.      The distinction b/t homicide and attempted homicide is the punishment
2.      What makes for good Criminal Law
a.       PPL must know of the law (Roman “12 tablets” if ppl don’t know of the law, it could lead to rebellion)
b.      Know of the laws existence
c.       Know the laws relevance
                                                              i.      Maxim- ignorance of the law excuses no man
d.      Must know factual circumstances of the law that make it applicable
e.       Must be able to comply with the law; and
f.       Must be willing to do so
3.      Basic elements for a Crime Must have 1) the act 2) intent 3) actual causation (your  act)
a.       There are specified elements to certain crimes (rape, homicide)
4.      Constitutional Limits to criminal law
a.       No ex post facto legislation (A1 S9,10)
                                                              i.      Person has to know an act is prohibited b/f he does it
b.      No cruel and unusual punishment (8th amendment)
c.       Person is entitled to due process of law (4th & 5th amendment)
5.      Getting the Verdict
a.       Civil Cases- must show preponderance of evidence
b.      S/time use- “clear and convincing evidence”
                                                              i.      More than preponderance but less than reasonable doubt
c.       Criminal Stnd- beyond a reasonable doubt
                                                              i.      Prosecution carries the burden
                                                            ii.      Defense carries burden to show insanity
                                                          iii.      What is reasonable doubt?
1.      The word “reasonable” is difficult to define
2.      Don’t want the jury instructions to be too lenient
a.       Blackstone said better to let 10 guilty men walk free than to convict 1 innocent man
                                                                                                                                      i.      Downside to this- by letting bad ppl go potential for more crime (repeat offender)
b.      Harlan said- can’t say sending 1 innocent man to jail is equal to letting 10 guilty men go free
                                                          iv.      Types of Jury Instruction (try and find beyond a reasonable doubt) (pg11)
1.      “Moral Certainty” instruction
2.      “Firmly Convinced” instruction (don’t require proof that overcomes every doubt)
3.      “No Waver or Vacillation” instruction (if person wavers it isn’t beyond reasonable doubt)
4.      “No Real Doubt instruction”
5.      “Thoroughly Convinced” instruction
Principles/Theories of Punishment
1.      How do we punish
a.       Death penalty
b.      Incarceration
c.       Shaming
2.      Criteria for Punishment
a.       Directed toward s/o who is responsible in some sense
b.      It involves “designedly” unpleasant or harmful circumstances
c.       The consequences are usually preceded by judgment of condemnation
d.      Imposed by s/o who has authority to do so
e.       Imposed for a breach of some established rule of b/h
f.       Imposed on an actual or supposed violator of the rule of b/h
3.      Utilitarian (Bentham)
a.       Forward-looking
                                                              i.      Seeks to maximize utilities (happiness)
b.      Consequentialist (cost/benefit-if society doesn’t benefit, no need to punish)
                                                              i.      Weighs utility to disutility to determine punishment
c.       Crime Prevention (Punish to…)
                                                              i.      General deterrence- send message to other ppl
                                                            ii.      Specific deterrence- send message to violator
                                                          iii.      Incapacitation- want to get violator off the street
                                                          iv.      Rehabilitation- want to avoid recidivist/repeat offender
1.      Counseling, education, job skills, etc.
2.      If person is rehabilitated and develops skill, he brings benefit (utility) to society
4.      Retributive (Kant)
a.       Backward-looking
b.      Non-consequentialist (no cost/benefit)
c.       Just Deserts
                                                              i.      Important to punish by morals (guy did something wrong, deserves punishment regardless if society benefits)
1.      Important to get right guy b/c immoral to punish wrong guy (utilitarian view might not care as much as long as the benefit outweighs the cost)
2.      In utilitarian view if prosecute wrong guy but e/o believes it’s the right guy, it still good b/c accomplished general deterrence.
5.      Cases
a.       The Queen v Dudley
                                                              i.      Facts- It was common practice that ppl on boat would draw straws to see who gets eaten if boat is shipwrecked. Dudley, Stevens, Parker, and Brooks get shipwrecked. NO food or water for days. Parker drinks sea water and gets sick. No idea when they’d be saved and clear that no one would survive w/o food. Parker would have died 1st. Stevens holds parker down and Dudley stabs him to death. They eat him. 4 days after killing him they are rescued. Dudley arrested for murder.
                                                            ii.      Judge wanted them to be guilty so they would appeal and Supreme Court would rule whether can eat s/o when shipwrecked.
                                                          iii.      Court ruled that extreme necessity doesn’t justify killing s/o (can’t eat him)
1.      They were sentenced to death and then had it changed to 6 months (queens mercy)
                                                          iv.      Jury found that they all would’ve died if didn’t eat parker and that parker would’ve died 1st anyways
1.      Blackstone said by eating parker you escape greater evil (4 dead men)
                                                            v.      Under Utilitarian would they punish?
1.      General deterrence- hard to say what would deter s/o in extreme circumstances. Death penalty might b/c either way the person will die
2.      Specific deterrence, rehabilitation, incapacitation- probably wouldn’t do a/t. Dudley and Stevens didn’t think they did a/t wrong
                                                          vi.      Under Retributive would they punish?
1.      Yes. They decided to kill him w/o consent. They imposed their will on him.
b.      Sources of Law

ure how much prison time = rape
                                                            ii.      In general, how do you figure out measures
2.      Bentham (Utilitarian)
a.       Resort to punishment only when other methods of crime prevention fail
                                                              i.      Punishment must be enough to outweigh the benefits of doing the crime
                                                            ii.      Greater the mischief, greater the punishment
                                                          iii.      If there are two possible offenses, punishment should induce the person to choose the lesser
                                                          iv.      Punishment should vary for every part and type of offense to deter all
                                                            v.      Punishment should be no greater than needed to induce compliance
3.      Constitutional Proportionality
a.       A punishment can’t violate a constitutional right (1st amendment, 14th amendment)
                                                              i.      8th amendment- “Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishment inflicted.”
b.      Coker
                                                              i.      Facts
1.      Coker escaped jail, broke into a house, tied up husband and threatened him with a knife, kidnapped the wife and raped her.
2.      T/C sentenced him to death. 
                                                            ii.      Issue
1.      Whether death in this case (death for rape) is “too excessive” and therefore is unconstitutional
                                                          iii.      Holding- Yes
1.      Court on appeal considered the sentence unconstitutional
                                                          iv.      What makes a punishment “excessive” (and, therefore, unconstitutional)?
1.      Utilitarian- It “makes no measurable contribution to acceptable goals of punishment and hence is nothing more than purposeless and needless imposition of pain and suffering”; or
2.      Retributive- It “is grossly out of proportion to the severity of the crime.”
c.       Ewing
                                                              i.      Facts
1.      Charge: Shop-lifting ($1,200 golf clubs) (this was 3rd strike)
2.      Sentence: 25 years to life
                                                            ii.      Issue
1.      Whether 3 strikes policy in this case is too excessive (violation of 8th)
                                                          iii.      Holding
1.      “Ewing’s sentence is justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.”
2.      “It is enough that the State of California has a responsible basis for believing that dramatically enhanced sentences for habitual felons ‘advance[s] the goals of [its] criminal justice system in any substantial way.”