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

Intro: Nature, Sources and Limits of the Criminal Law
·         Nature: What distinguishes criminal law from a civil sanction is the moral condemnation that accompanies and justifies criminal law’s imposition. 
·         Crimes = Conduct which will incur a formal and solemn pronouncement of the moral condemnation of the community. Criminal law protects the interests of society as a whole, while civil law is about protecting the individual.  Or more accurately, a crime is any conduct that the legislature defines as a crime. 
·         Omission to act can also constitute a crime. Ex: failure to file an income tax return.  However, there are valid excuses for non-performance (e.g. incapable of filing) or performance (i.e. murder can be excused if it was based on self-defense). 
·         4 conditions must exist before criminal law can work:
1)      Must know a law exists that addresses the conduct
2)      Must understand that the law applied to the conduct
3)      Must be able to comply with the law
4)      Must be willing to comply with the law (if no one is willing to comply, then there can be no moral condemnation)
·         Sources: began as judge made common law from England.  Beginning in the 19th century state legislatures began to enact criminal statutes.  Today, legislatures, not judges, define criminal conduct.  However, judges have the vital role of interpreting the criminal statutes.
–           Model Penal Code: the ALI developed the MPC to create unity and coherence to the criminal law.  Most states have adopted the MPC as law. 
·         Limits: the constitution prohibits ex post facto legislation (meaning can only punish for crimes on the books at the time crime was committed).  Constitution also provides that persons can’t be deprived of life liberty or property without due process of law. 
Pre Trial
·         Police need probable cause before they can arrest a suspect.  i.e. a substantial chance that the suspect committed the offense under investigation. 
·         In many states and the federal system, the accused can’t be brought to trial unless she is indicted by a grand jury. i.e.  lay members of the community who consider evidence and determine whether there is adequate evidence to prosecute the accused. 
·         In most cases, a defendant will plead guilty rather than proceed to trial in exchange for a more lenient sentence or reduced charges. 
Trial by Jury
·         The 6th amendment provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. 
·         In prosecutions for which the maximum potential punishment exceeds 6th months, the jury not judge must find the defendant guilty. 
·         The purpose of the jury system is to defend against arbitrary power by the government
Proof of Guilt at Trial
·         The SC ruled in In re Winship that the due process clause requires the prosecutor persuade the fact-finder “beyond a reasonable doubt of every fact necessary to constitute the crime charged.” 
·         The beyond a reasonable doubt standard is an instrument for reducing the risk of convictions resting on factual errors.  We want to protect against erroneous convictions: we would rather have a guilty guy go free than an innocent man be punished. 
·         The accused stands to be stigmatized, lose his liberty, etc so we shouldn’t condemn a man for a crime if there is a reasonable doubt as to his guilt. 
·         The burden of proof is heavy also because we need to protect citizens from the power of the state. 
·         Defining beyond a reasonable doubt: the standard requires that the juror’s mind be in a subjective state of near certitude of guilt.  
Enforcing the Presumption of Innocence
·         Owens v. State
o   Owens found behind wheel of parked car drunk in a private driveway was arrested and convicted for driving while intoxicated. There were a few empties at his feet.  He was convicted for drunken driving before stopping in the private driveway.  He appealed on the ground of “insufficiency of evidence” i.e. that the prosecutor did not overcome the presumption of innocence. 
o   Issue: whether the circumstances are inconsistent with any reasonable hypothesis of innocence.  i.e. whether it can reasonably be inferred from the circumstances that it is more likely that he had just been driving or whether he was about to drive. 
o   The circumstantial evidence makes it more likely that he was coming, not going, therefore, conviction upheld.  “The totality of the circumstances are inconsistent with a reasonable hypothesis of innocence. First, one usually doesn’t bring empties from the house into the car.  Second, there was a complaint about a suspicious vehicle, the inference being that someone had observed him driving in an erratic fashion or simply that he was somewhere he normally isn’t and therefore must have driven there.  The purpose of the case is to show that proof of reasonable doubt is not a “tie breaker”, there must have been no better explanation for the criminal conduct.  All the statute really says is that there must be proof beyond a reasonable doubt that he was driving drunk. 
MPC § 3.02. Justification Generally: Choice of Evils
(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:
(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (i.e. what you’re going to do is of a greater good than the alternative or what you did was the lesser of two evils)
(b)   Neither the code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c)    The legislative purpose to exclude the justification claimed does not otherwise plainly appear
(2)   When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. 
Theories of Punishment: In General
·         Punishment is a practical necessity in a system in which threats of punishment are to be taken seriously; for a system that punishes people, actual punishment is required or the mere threat will not be taken seriously. 
·         A retributivist claims that punishment is justified because people deserve it
·         A utilitarian believes that justification lies in the useful purposes that punishment serves
What is Punishment?
1)      It is performed by and directed at agents who are responsible in some sense
2)      It involves decidedly harmful or unpleasant consequences
3)      The consequences are preceded by a judgment of condemnation
4)      It is imposed by someone with authority to do so
5)      It is imposed for a breach of some established rule of behavior
6)      It is imposed on an actual or supposed violator of the rule of behavior
Utilitarian Justifications
·         Based on the premise that people seek happiness and seek to avoid pain
·         The general object is to exclude everything that subtracts from happiness; i.e. to exclude mischief. i.e., we punish to maximize pleasure over pain.
·         However, all punishment in itself is evil, therefore upon the principle of utility, punishment is only appropriate where it will exclude some greater evil
·         In order for punishment to deter future crimes the punishment must
1)      Be swift
2)      Be severe
3)      Be certain (might be the most important factor for deterrence – criminals more deterred if there is a 95% chance of getting caught but a 1 year sentence than if there was a 5% chance of 5 year sentence) 
·         Punishment ought not to be inflicted where it is
1)      Groundless
2)      Ineffective (won’t prevent the mischief)
3)      Unprofitable or too expensive (where the mischief it would produce is greater than what it prevented
4)      Where it is needless (where it can be prevented in an easier or cheaper way)
Benefits of Punishment under Utilitarian Theory
1)      General Deterrence: knowledge

dant to a prison sentence longer than otherwise would be required. 
§ 1.02. Purposes; Principles of Construction.
(1) The general purposes of the provisions governing the definition of offenses are:
(a)    to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests;
(b)   to subject to public control persons whose conduct indicates that they are disposed to commit crimes;
(c)    to safeguard conduct that is without fault from condemnation as criminal;
(d)   to give fair warning of the nature of the conduct declared to constitute an offense;
(e)    to differentiate on reasonable grounds between serious and minor offenses.
(2) The general purposes of the provisions governing the sentencing and treatment of offenders are:
(a)    to prevent the commission of offenses;
(b)   to promote the correction and rehabilitation of offenders
(c)    to safeguard offenders against excessive, disproportionate or arbitrary punishment
(d)   to give fair warning of the nature of the sentences that may be imposed on conviction of an offense;
(e)    to differentiate among offenders with a view to a just individualization in their treatment
(f)    to define, coordinate, and harmonize powers, duties and functions of the courts and of administrative officers and agencies responsible for dealing with offenders
(g)   to advance the use of generally accepted scientific methods and knowledge in the sentencing and treatment of offenders;
(h)   to integrate responsibility for the administration of the correctional system in the State Department.
PRINCIPLE OF LEGALITY – nulla poena sine lege – condemns judicial crime creation.
The Requirement of Previously Defined Conduct
·         Commonwealth v. Mochan
o   D harassed P over the telephone for an extended period of time talking of intercourse and sodomy and is charged with intending to “debauch and corrupt, and further devising and intending to harass, embarrass and vilify…” D was attempting to destroy Ps reputation and harmed both P and the community.
o   Problem – these crimes were not prohibited by statute but the statute allowed prosecutors to punish defendant under the common law – Section 1101 of the Pennsylvania Penal Code of 1939 provided that “every offense punishable either by the statute or the common law of this Commonwealth and not specifically provided for by this Act, shall continue to be an offense punishable as heretofore.”
o   Issue – whether D could be prosecuted and punished under the common law?
o   Can punish for: (1) injuriously affecting public morality, (2) obstruct or pervert public justice, (3) obstruct or pervert administration of government, (4) openly outrage decency and injure public moral, (5) scandalously affect the morals or heath of the community, and (6) maliciously vilify the Christian religion…(bottom of 89)
o   Ds acts injuriously affect public morality and vilify the Christian religion.
o   Dissent – a judge is not supposed to be setting policy across the board – that is what the legislature is for – they express the will of the people, not judges…
o   NOTE – nearly all states have abolished common law offenses, including Pennsylvania. Nevertheless, as the following material suggests, even in states that have abolished common law offenses, common law doctrine retains significance.