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

Spring2014- St. Johns Law- DeGirolami- Crim Law

I. Intro and Actus Reus

A. IN GENERAL:

· 1% of population incarcerated

· # of Americans incarcerated has been gradually increasing over the last 30 yrs. and many more ppl on probation or parole

o country became more conservative in terms of punishment

o increased use of drugs leads to increased crime

· PROBATION= alternative to imprisonment- time period when person is under conditions of probation under watch of probation officer

· PAROLE= person is let out of prison early serving the remainder of their sentence under supervision of parole officer (curfew and other conditions)

· If probation or parole conditions are violated then person is sent back to prison

· Incarceration increasing even while violent crime decreasing after 1994- WHY?

o Better policing

o Juries more willing to convict

o Targeted arrest and prosecution – BROKEN WINDOW THEORY- if you target smaller crimes then that sends a message and you take ppl off the street who are committing the more violent crimes as well

o Drop off of use of heroin

· INTERNATIONAL PERSPECTIVE- US per capita incarcerates a great % of citizens than other countries

· 1 in 3 AFRICAN AMERICAN MEN between 20 and 30 are incarcerated or under community supervision (probation or parole)- in some cities this is 1 out of 2- WHY?

o Discrimination

o Learned behavior

o Media

o Broken families

· CULTURE- fascination among American ppl w/ crime and courtroom drama (if it bleeds, it leads)

· SOURCES OF LAW:

o Common Law

o MPC

o NY LAW

§ Penal law

§ Vehicle and traffic law

§ others

B. CRIMINAL v. CIVIL LAW

DIFFERENCE

CRIMINAL

CIVIL

1. Parties

Prosecutor/state

Defendant

Plaintiff

Defendant

2. Burden of Proof

BARD

Preponderance of the evidence (50/50 which side tips)

3. Who brings the case

Govt. (crime against entire social fabric)

Private party

4. Verdict

Guilty or Not Guilty (not innocent because burden of proof is on Govt. so D does not have to bring any proof at all of his innocence)

Liable or Not Liable

5. Disposition/ Result

Jail, prison, fine, death

Money damages, injunction

C. CRIMINAL PROCEDURE BASIC:

1. Crime reported to police, investigation

2. Arrest

3. Accusatory instrument- legal document drawn up by prosecutor that charges D w/ the crime (analogous to complaint in Civ Pro)

4. Arraignment – 1st appearance of D

· Bail- what happens to D pending outcome of case?

· Appointment of lawyer

· Advisement of rights

o If a felony® Grand Jury® Indictment

§ Felony= More serious crime punishable by more than one year or more in prison

§ Misdemeanor= punishable by less than 1 year and usually carried out in local jail rather than in State Prison

§ GRAND JURY= secret body, no judge- if they find enough evidence to go to trial then they grant an indictment (an accusatory instrument that charges D with a crime)

5. Pre-trial motions and hearings

6. Usually discussion of plea bargains- if D pleads crime he usually receives less time (able to plead smaller crime)

7. Trial

8. Sentencing

9. Appeal

D. PURPOSES OF PUNISHMENT:

1. Retribution- punishes because a crime has been committed that deserve condemnation through punishment

2. Deterrence:

· Spe

its face

· Conduct must be unlawful

· Defendant was the one who committed it (identity)

G. GENERAL REQUIREMENTS FOR ALL CRIMES- 6 ELEMENTS:

· 1. Jurisdiction – conduct or consequence occurs in NY- can be prosecuted in any state where either the conduct or result occurred

· 2. Legality:

o a. Legislativity- requirement that crimes must be created by the legislature (statute), not by courts

o b. Specificty- crimes has to be specific, not vague

o c. Lenity- Judicial interpretation of ambiguous statutes should be “biased in favor of the accused”- NY HAS DONE AWAY WITH THIS REQUIREMENT

o d. Prospectivity- crime cannot be retroactive

o e. Publicity- statute has to be available, published- BUT- ignorance is no excuse for violation of the law

· 3. Actus Reus- action

· 4. Mens Rea- mindset

· 5. Causation – Direct Cause (But For Causation) + Proximate Cause (Intent not required- sufficient that ultimate harm was reasonably foreseeable)

· 6. Concurrence

o ONLY IN LARCENY AND BURGLARY

o IN LARCENY: Concurrence is not a problem because of the “continuing trespass doctrine”: idea that when D takes item off shelf taking continues until the item is paid for \ if the intent to steal occurs after the 1st instance of taking, mens rea and actus reus can match up @ that point

§ This doctrine is a legal fiction designed to protect business owners in a mercantile society

o IN BURGLARY: @ the time of entry- D must have intent to commit a crime (ie: actus reus +mens rea must occur @ the same time)