PODGOR CRIMINAL LAW FALL 2013 (STETSON)
General
Ø Criminal Law
· Most of criminal law is statutory in nature à look at the words to determine if it is a MPC or common law statute.
· Standard of proof for conviction à beyond a reasonable doubt
· Consider methods to interpret a statute; consider punishment theories; vehicles for appeal
· Common Law: Malum in se (wrongful in itself) vs. Malum prohibitum (legislature makes it a crime; lower intent/strict liability)
· Almost all criminal law is statutory à Felonies vs. Misdemeanors
· Should a bright line or flexible approach be used, in certain statutes/circumstances? (relate to punishment)
Ø Punishment v. Sentencing
· Punishment theory may form how we sentence, but it is not the same thing
· Sentencing: varies from state to state; the legislature makes the determination for determinate sentences. The judge makes the decision for indeterminate sentences. If a sentence is indeterminate, the parole officer may decide to shorten sentences.
o Unreasonable: the appellant has the burden to show a sentence is unreasonable, and an abuse of discretion.
o Factors to Consider:
§ Nature of the offense
§ Character of the offender
§ Protection of the Public interest (danger to society?)
o Federal Sentencing Guidelines: are merely advisory, and not mandatory. Appellate courts should review sentences for “reasonableness”. The court considers the punishment theories
· Proportionality for “Cruel/Unusual”: gravity of the offense & harshness of penalty, sentences for similar crimes, and sentences outside the jurisdiction.
Ø Vehicles for Appeal
· Constitutionality: cruel and unusual punishment (proportionality), due process (right to privacy, etc.)
· Insufficient evidence: looks if each element is sufficiently supported with evidence
· Improper Jury instruction: question the law given to the jury
· Evidentiary: error, or the judge admitted improper evidence
Punishment
· Punishment à imposed to deter crimes; crime incurs a moral condemnation of the community
* Criminal law seeks retribution for society
Ø Purposes of Punishment (Denunciation is both utilitarian and retributive)
Utilitarian (prevent future harms)
· General Deterrence (fear of punishment for the public)
· Specific Deterrence (fear of punishment for the individual; incapacitation)
· Rehabilitation (become better citizens)
· Isolation (cannot harm others)
· Education (educating individual is rehabilitation; educating public is general deterrence)
Retributive (focused on the past; paying a debt to society)
· Retribution
Ø Sentencing: At sentencing the findings have to be based on the preponderance of the evidence (not beyond a reasonable doubt)
o Sentencing guidelines are advisory, and not mandatory.
o Mandatory minimum sentences may be imposed by statutes, which limit the court’s discretion (made prosecutors more powerful). The courts should consider the guidelines as well as the whole picture.
o Considerations In Sentencing
· Acceptance of Responsibility
· Nature of the Offense
· History of the Defendant
Ø Considerations for Whether Punishment is Cruel/ Unusual
· The gravity of the offense and the harshness of the penalty
· The sentences imposed for the same crime in the jurisdiction
· The sentences imposed for the same crime in other jurisdictions
· 8th Amendment à excessive bail, fines, or cruel and unusual punishment will not be imposed. (Proportionality à the punishment should be proportional to the crime)
Ø Capital Punishment
· 2 Social Purposes à retribution & deterrence
· 5 Factors to determine if a murderer deserves capital punishment
§ Murder of police while performing duties
§ Murder of people at a correctional facility (inmates/staff/visitors)
§ Murder of 2+ people (with intent to kill 2+ or knowledge of probably causing great harm)
§ Intentional murder involving torture (when there is pleasure in causing pain)
§ Murder by someone under investigation (or charged/convicted) of a felonious crime of anyone involved in the investigation (witnesses/jurors/judges/prosecutors/investigators)
· Additional Considerations à circumstances, prior criminal activity, prior convictions, mental/emotional stress, consent of the victim, moral justification, duress, impairment, age, accomplice, etc.
· The minimum age for a death penalty has never been less than 16 à establishes a precedent. Normally not appropriate for juveniles à may be ineffectual as deterrence; there is instead a potential for rehabilitation
o lack of maturity
o more susceptible to negative pressure
o character not well formed
· Death penalty à look at precedent, constitutionality, data, legislature, other jurisdictions
· The national consensus is against executing mentally retarded offenders (unusual)
Interpreting Criminal Statutes
Ø Steps in a Criminal Prosecution
§ Investigation (done by police; gather evidence; make arrests; recommend charges)
§ The Charge (by prosecutor – indictment; or grand jury – information; defendant gets representation)
§ Pre-Trial Motions (court determines preliminary issues à exclusion of evidence, dismissal requests)
§ Trial (defendant is entitled to a jury trial if 6 month+ sentence is possible; can waive trial if the prosecutor agrees à judge hears case as trier of fact)
§ Plea Bargain (waives the trial right à sentencing; usually in exchange for cooperation/lower sentence)
§ Jury Instruction (statement of law given to the jury at the end of the trial)
§ Motion for a Judgment of Acquittal (the defendant may à have case dismissed for insufficient evidence or move for a directed verdict)
§ Double Jeopardy (not guilty à government cannot charge with the same crime, except if a different state or the federal government à as long as there is jurisdiction – Dual Sovereignty Doctrine)
Ø Basis for an Appeal
* insufficient evidence *improper jury instruction *evidentiary *constitutional
· Insufficient Evidence: if the prosecution did not prove an element of the crime
· Burden is on the defendant to show that a sentence is unreasonable (or that there is an error)
· A legal error must be shown by the defendant à usually remedied with a new trial or “not guilty” verdict
· Standard of Review: in a light most favorable to the government/prosecution; only reversed if could not have been found “beyond a reasonable doubt”. (1% of the time à government appeals due to sentencing guidelines – usually cannot appeal due to double jeopardy).
o Pre-trial à if charges are dismissed, the appellate review of facts is made in a light favorable to the
sk of conviction is (likely to get a lower sentence is the trouble of a jury trial is avoided).
· Both sides must agree in order to waive the jury trial right
Ø Evidence
· Lawyers should become familiar with the science of the testimony in order to communicate with the jury
· DNA importance may be overstated à doesn’t show consent or mens rea of the parties; there may be no matches in a database of arrested people; juries may be skeptical even if there is a DNA match
· Principle: a general statement asserted to be true: Method/Technique: applying a principle to individual cases
· Federal Rules of Evidence 702 à evidence must be based on reliable principles and methods (must be testable, survived peer review, the error rate is known, authoritative standards controls the technique, if the technique has gained widespread acceptance). The expert must be qualified
· Prosecution has the burden of proving the elements of a crime beyond a reasonable doubt (otherwise due process violation à must prove there was a voluntary act, if mens rea is an element, etc.)
· Defendant can raise 2 Types of Defenses
o Failure of Proof: the prosecution has failed to meet its burden for an element; the defense may need to produce evidence in support of this defense (burden of production), which the prosecution must then disprove). Ex. mistake of fact
o Affirmative Defense: the defendant has the burden of persuasion, usually by a preponderance of the evidence; Must prove other facts which either justify or excuse the wrongful actions
· 2 aspects to preparing a case à technical and artistic (narrative/story)
Ø Investigation/Discovery/Pleas
· Grand jury: citizens who decide whether there is probable cause to indict someone for a crime; can subpoena witnesses for appearances/documents.
· A judge determines is the evidence is enough for a felony case à then goes to trial.
· Reciprocal Discovery à the prosecution must product information for the defense only If the defense produces it for the prosecution; Alibi and insanity defenses create reciprocal discovery obligations.
· The prosecution must prove all exculpatory (guilt clearing) material to the defense
· Guilty Pleas à (high % of cases end in a plea) both sides have an incentive to settle (no one is guaranteed to win at trial). Settling can lower a sentence, but also lowers the risk of acquittal for the prosecutor. Guilty plea negotiations require an exchange of info about evidence, arguments, and legal issues à the defense must have consent from the client in order to reveal information. Pleas saves judicial resources.
· Only the client can consent to the plea agreement. Statements made during plea negotiations are inadmissible at trial (some exceptions).
