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Criminal Law
St. Johns University School of Law
Chiu, Elaine M.

     Fundamental Questions for Criminal Law
Why the criminal law? Why do we punish? What purposes does punishment serve?
Who should we punish?  Who are the criminals? What is a crime?  What is not a crime? What distinguishes blameworthy conduct from other non-blameworthy conduct?
How much should we punish?
      Criminal Law
1.         Directions or commands telling people what they should and should not do
a.         Certain things are morally condemned
b.         Driven by statutes and deals a lot with statutory interpretation
2.         Who decides what criminal law is?
a.         Legislatures: have the power to make the laws
b.         Judicial: ensure that legislation is constitutional and interpret criminal statutes
Elements of a Crime: Need all
1.         Actus Reus = Voluntary Act
2.         Mens Rea = Required State of Mind
3.         Causation = Actual and/or proximate cause
4.         Social Harm = Tangible or intangible harm to society
5.         Attendant circumstances = Condition
      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
Types of Crimes
·          Crime→ an act or omission and its accompanying state of mind which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community
1)        Felony: punishable by death or imprisonment in a state prison; these are divided into degrees
ü  Ex: rape, arson, murder, sodomy, prison escape, larceny, robbery
2)        Misdemeanor: maximum punishment is a monetary fine or incarceration in a local jail; less than a year
Stages of a Criminal Lawsuit
·          Dismissal can happen at any point when there is a lack of evidence; a plea bargain can occur anywhere before the appeal (bargain over guilt and negotiate punishment; judge can disapprove).
                                                 i.      Complaint/Investigation
                                               ii.      Arrest: Turn over from police to prosecutor (sufficient evidence- probable cause)
                                              iii.      Arraignment (Formal Charging)
1.         Short and quick; before a prosecutor, defense attorney, and judge
2.         Set bail and decide what they will do with the suspect during the time of the trial
3.         First chance to answer guilty or not guilty
                                              iv.      Indictment or Preliminary Hearing
1.         Look at evidence to see if the evidence is appropriate to let the case continue à need enough evidence to validate the arrest decision; sometimes use a grand jury
2.         serious felonies, Grand Jury gets to ask questions, Grand Jury issues indictment if case can go forward as serious charge)
3.         Preliminary Hearing (Prosecutor files an “information” with formal charges & basic facts)
                                                v.      Pre-Trial Motions: supervised by judge, most criminal cases resolved here by plea bargain
                                              vi.      Trial
ü  decide facts of the case
ü  Right of the jury in all prosecutions in which maximum potential punishment exceeds incarceration of six months
ü  Usually 12 persons, although as few as 6 is permissible
ü  State laws permitting non-unanimous verdicts by 12-person juries are permissible as long as the vote to convict constitutes a substantial majority of the jurors
ü  Applies only to “non-petty” offenses: offenses where imprisonment for more than 6 months is authorized or (if less than six months) additional statutory penalties are so severe that they reflect legislative determination that offense is “serious”
ü  Proof beyond a reasonable doubt (Owens v State)
                                             vii.      Sentencing: Usually by the judge; in death penalty cases this is done by the jury.
                                           viii.      Appeals
1.         Often about a procedural mistake OR trial court abused their discretion
2.         Sometimes when there is new evidence
Theories of Crime and Punishment (our laws are a mix of both)
     1. Utilitarian (Bentham)—punishment is evil so it should only be used to prevent greater harm and to serve a purpose to society
1.         Jeremy Bentham: act to embrace pleasure & avoid pain
2.         Crime: was there net pain/harm from a person's course of action? If so it’s a crime
3.         Punishment itself is painful > should only be imposed when it would serve future purpose and prevent future crime
4.         Deterrence: future crime prevention
5.         Forward-looking–There must be a risk of future commission of crimes
6.         Four theories Punishment:
a.         General Deterrence: changes behavior of others– D is punished in order to convince the general community to forego criminal conduct in the future; object lesson to the rest of the community (sends a message to the public).
b.         Specific Deterrence: directed to individual; in the future, he will have freedom again and he will be afraid of another punishment and so avoid crime
c.         Incapacitation: directed to individual, physically incapable of committing further crimes– takes away a person’s liberty and freedom b/c he cannot harm society when incapacitated (not about sending a message).
d.         Rehabilitation: directed to individual; change the way the offender thinks about committing crimes– by rehabilitating the person, he will have the ability to make better choices (not about sending a message).
       2. Retributivism (Kant)- crimes are evil and need to be punished
·          Reaction to utilitarian theory
·          Negative Retributivits- can never punish innocent people
·          Punish because people deserve it
·          In deciding whether a person criminal is that person morally culpable? Did they exercise free will and make a condemnable choice?
·          All guilty persons should be punished, not b/c their punishment will reduce future crime, but b/c they need to be/deserve to be punished.  Backward looking theory.  Focus on the past—choice at the time.  Is a person a person morally culpable? Did he exercise free will? Did he make a condemnable (affirmative) choice?
·          Backward-looking
·          Negative retributivism: view that the innocent should never be punished; guilt is a necessary condition of punishment
·          Positive retributivism: All guilty persons should be punished, not because their punishment will reduce future crime, but rather because they need to be/deserve to be punished; guilt is a necessary & sufficient condition for punishment-Always punish guilty
a.         Assaultive (Stephen): deter private vengeance & send symbolic message of general deterrence
b.         Protective (Morris): criminals have right to be punished, restoring moral equilibrium between criminal and greater society; connect punishment to freely chosen act; way to repay debt & return community to moral equilibrium
c.         Victim-oriented (Hampton): reaffirms value of victim & restore equilibrium between criminal & victim
Model Penal Code: 1.0: Purposes; Principles of Construction
                               i.               (1) Purposes & definitions:
1.         forbid & prevent conduct that threatens substantial harm to individual or public interests (utilitarian)
2.         subject to public control persons whose conduct indicates that they are disposed to commit crimes (utilitarian)
3.         safeguard conduct that is without fault from condemnation (neg retribualism)
4.         give fair warning of nature of conduct constituting offence
5.         differentiate serious & minor offenses
                              ii.               (2) Purposes of sentencing:
1.         prevent offenses
2.         promote correction & rehabilitation
3.         safeguard offenders against excessive punishment
4.         give fair warning of sentences
5.         differentiate among offenders > just individualization
6.         define/coordinate/harmonize courts, administrative officers, & agencies
7.         advance use of sci methods & knowledge in sentencing
8.         integrate responsibility for administration of correctional system in State Dept of Correction
b.           NY Penal Law: 1.05- General Purposes
                               i.               proscribe conduct that threatens substantial harm to individual or public interests
                              ii.               give fair warning of nature of conduct proscribed & sentences
                            iii.               define act or omission & accompanying mental state
                             iv.               differentiate between serious & minor offenses and prescribe proportionate penalties
                              v.               provide for appropriate public response to particular offenses* (
                             vi.               insure public safety through deterrent influence of sentences, rehabilitation, promotion of reintegration, & confinement
c.            NY Penal Law: 10.00: Definition of Offenses
                               i.               Offense: conduct for which a sentence of imprisonment or fine is provided by any law
                              ii.               Traffic infraction: defined by vehicle & traffic law
                            iii.               Violation: offense other than traffic infraction, for which imprisonment beyond 15 days cannot be imposed
                             iv.               Misdemeanor: offense other than traffic infraction, for which imprisonment can exceed 15 days but not 1 year
                              v.               Felony: offense punishable by imprisonment over one year
                             vi.               Crime: misdemeanor or felony
Model Penal Code § 1.04 – classes of crimes, violations (page 976)
-Violation: crime is a violation if designated in the law; no sentence other than a fine and forfeiture OR other civil penalty (this is NOT a crime)
-Misdemeanor: if designated so in the code or in a statute other than the code
·          Any offense that is a crime but does not specify the grade is classified as a misdemeanor
-Petty misdemeanor: if designated so in the code or in a statute; can be sentenced to imprisonment for not more than a year
-Felony: if designated in the code; convicted person can be sentenced to death or imprisonment in excess of a year
-Crime: an offense defined by this code or by any statute of the state for which a sentence of death or imprisonment is authorized  (includes felonies, misdemeanors, petty misdemeanors) 
-Offenses that are defined by a statute other than the Code – the sentence imposed upon conviction should still be governed by the Code
NY Penal Law § 10.00 – definitions (p. 3)
-Offense: conduct for which a sentence or fine is provided by the law
-Traffic infraction: offenses designated by such in the traffic law
-Violation: offense for which no more than 15 days of imprisonment can be imposed (does not include traffic infraction)
-Misdemeanor: offense for which no more than a year of imprisonment can be imposed (does not include traffic infraction)
-Felony: offense for which a sentence in excess of one year can be imposed
-Crime: is a misdemeanor or a felony
-Are all offenses; felonies and misdemeanors are also crimes
-The legislature decides what everything is classified as when they write the statutes
Utilitarian v. Retributivist Proportionality
·          Ensures offender receives punishment appropriate to the crime-Linked to predictions of future harm and extent to which undesired conduct is deterrable
·          Punishment is undesirable unless it results in net benefit to society
      Utilitarian Bentham’s rules on Proportional Punishment
a.         Punishment should be greater than the profits from the crime (if there is too little punishment, crime remains profitable and punishment will be ineffective
b.         Going up: greater the profit of offense to D – greater the expense and greater the punishment
c.         More aggravated versions of a crime (the greater the harm) should have greater punishment to encourage minimization of the crime
d.         Punishment should never be excessive- There should be no more punishment than is necessary to satisfy these prior goals]  

manneràThe Due Process Clause (5th and 14th Amendment)
                                                                               iii.            Prevent arbitrary & vindictive use of law
                                                                               iv.            Enhance individual autonomy
Ø  Keeler v. Superior Court—Keeler kneed his g/f in the abdomen while pregnant. Keeler said it was unconstitutional to pursue him for murder because the CA statute didn’t define whether a fetus was considered a human being. P said it should be viability to see if it could have survived if it had been born at the time. Not found guilty of murder b/c California statute at the time only intended murder to be killing of human beings. (Fetus not considered human being.) D can't be charged with murder because at the time he committed the assault, the fetus was not legally considered a human b/c It wasn’t born alive. CA amended the law AFTER to include fetuses, but he was not found guilty b/c statute was amended after the fact.
Ø  Words of the statute control—nothing in statute about unborn fetuses
Ø  Lenity
c.         Lenity—judicial interpretation of ambiguous statutes should be biased in favor of the accused—will give D benfit of the doubt allowing leg to amend the rule to include the D conduct
1)        If there are two reasonable but confliction meanings of the law, the court must find in favor of the defendant.
2)        California uses Lenity—used lenity to change the murder statute to unborn fetuses
3)        NY does not use lenity
4)        NY Penal Law 5.00- lenity DOES NOT apply in NY. Instead, go with fair import (plain meaning) & with objects of the law (legislative intent)
        ii.            Void for Vagueness—rare for courts to find a statute unconstitutionally vague
a.         Fair notice requirement: defendant must have reasonable opportunity to know what is prohibited through explicit standards; unduly vague statutes inhibit the exercise of individual freedom (criminal statute must be suffiently definite as to give notice and guide the judge in its application and the lawyers in its defense)
b.         Vague and overbroad statutes can also be applied in a selective or discriminatory manner by police & other legal institutions (arbitrary discretion)
Ø  Chicago v. Morales : Statute to address Chicago’s gang problem was overly broad… and was void for vaguenessà Problem = Statute didn’t provide fair notice and gave arbitrary discretion. Arbitrary Discretion: ALL steps need to be free of arbitration but here, police officers hold the discretion in the first 2 steps. Held it was vague b/c
1.         Failed to provide notice that will enable ordinary people to understand what conduct it prohibits
2.         May authorize/ encourage arbitary and discriminatory conduct
Ø  Example: NY Penal Law §240.35 Loiteringà“Loiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his present.”
Ø  Muscarello v US: statute stated “uses or carries a firearm during and in relation to a drug trafficking crime is subject to a 5 yr term.” After interpreting plain meaning, leg intent, and evaluating each word with meaning, Court held “carry” includes glove box during crime
Statutory Interpretation: Approaches & Tools
·          Theory: what is your approach to interpreting states? What is your vision?
                                  i.            Textualists: when the language is clear and unambiguous, courts just give statute its plain meaning and definite meaning. Otherwise resort to intent
                                ii.            Intentionalists: What did the legislature mean when it used those words in the statute? Looks at the numerous sources to determine the intent of the legislature
                               iii.            Purposivists: consider the overall agenda or goal of the statute
Types of Canons/Tools in Statutory Interpretation
o    Textual cannons
o    Extrinsic/reference cannons
o    Substantive cannons
1)        Textual Cannons–Plain Meaning Person looks to this
§   Ordinary usage rule: assumption = use ordinary common usage of terms unless you see congress using special meaning
§   Dictionary rule: go to dictionary definition
§   Grammar canons: every mark of punctuation in a statute has meaning; ex. words may and or, should be followed in ordinary way (may v. shall)
§   Whole act rules
¾        Avoid rendering other words superfluous
¾        Noscitur a Sociis-it is known by its associates (ex: vehicle as contained by car, truck, plane…bicycle would not be included as a vehicle, doesn't have a motor like the others)
¾        Ejusdem Generis- “of the same kind”: If trying to understand one item on the list, must understand it in comparison with other things on the list; When looking at items in a series, they must be similar in nature
§   Expressio/Inclusio Unius (inclusion of one thing suggests the exclusion of other things)