Criminal LawProfessor Bobis
I. Introduction
A. Crime – Conduct that will incur a formal punishment and moral condemnation of the community. This distinguishes crimes from civil wrongs, the moral condemnation of the community.
B. Proof Beyond a reasonable doubt – Differing interpretations of the standard needed to convict one of a crime include Moral certainty, firmly convinced, no waiver or vacillation, and no hesitation.
C. Jury Nullification – The term used for the process of a jury allowing a defendant to be acquitted even though they committed the crime beyond a reasonable doubt.
o State v. Ragland, 105 N.J. 189 (1986). The issue of the jury being instructed that if they found the D committed the crime beyond a reasonable doubt that they must convict him. The court held that jury nullification is an unfortunate but unavoidable problem that should not be encouraged.
II. Principles of Punishment
Why, who and how much should we punish?
A. Utilitarian
1. Looks forward to the benefits of punishment
2. Punishment is justified when the utility outweighs the evil that inflicting punishment produces
3. Promotes the general happiness of the community
4. Benefits of Punishment
A. Specific Deterrence
B. Incapacitation
C. General Deterrence
D. Reformation
ü Problems – How do we know that these methods work without concrete empirical evidence?
o People v. Du, Korean owner of a store confronted a fifteen year old girl about shoplifting a fight ensued, and D was hit to the floor. As the girl left the store the D got a pistol which had been altered through a previous theft and shot the girl in the back of the head killing her. D was convicted of manslaughter but her sentence was suspended on utilitarian beliefs that it would do no good for society to have her in prison.
B. Retributive
1. People who commit crimes deserve to be punished “jus deserts.”
2. Negative retributivists believe that innocent people should never be punished while positive retributivists believe that criminals should always be punished.
3. Someone who voluntarily renounces the benefits and burdens of restraint should be punished.
4. Assaultive retributivist believes it is right to hatecriminals.
5. A retributivist would kill all the murderers in the world even if they were about to disband society and scatter throughout the world because they must realize the jus desert of their deeds otherwise all of society will be guilty because of it.
6. Looks backward at the crime committed.
· Harm
· Culp
e graded so that the criminal chooses the lesser of two evils
· Should induce the criminal to do more mischief then needed.
· Punishment should not be more then it has to be
b. Retributive
· Punishment is a mode of repayment
· Lex tallions – criminal deserves the same thing as he did
· Most reject lex tallions because it is impracticable and undignified
· Symbolically repay society the debt they owe.
D. Burden of Proof
· State has the burden of proving each fact of the case beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970).
· It is unconstitutional to presume a material element of the case, or make it a rebbutable presumption
· Mandatory rebuttable presumptions are unconstitutional
· Permissive presumptions are allowed under the law, the jury may draw an inference, but they cannot be required to do so.
· Defenses may allocate the burden of production to a defendants affirmative defense
