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Criminal Law
SUNY Buffalo Law School
Boucai, Michael

Criminal Law Outline
Prof. Boucai
Fall 2013
I.              What makes criminal law distinctive?
a) Must be proved beyond a reasonable doubt (standard of proof), cases are usually   brought by the state. 
b) Crimes are injuries to society not just individuals. 
c) Criminal cases require public enforcement and potential consequences are imprisonment and even execution- not completely distinct.
d) A hefty civil law fine can be worse than imprisonment to some people. Civil law detention for the mentally ill or immigrants.
I.              Henry Hart:  The judgment of community condemnation.  Society’s moral condemnation?
a.    Question: Is it only our moral condemnation of drug offenses that puts people in jail? An equal number of black and white men use drugs, but a vastly disproportionate number of black men are in prison.
II.            Mens Rea: 
a.    A guilty mind, someone can still be charged with a statutory crime despite lacking mens rea.
b.    A guilty mind is required that makes the criminal morally blameworthy.
III.           Sources of criminal law:
a.    Statutes (Legislature is primary source of criminal law). States have their own penal law
b.    Constitutional limits/safeguards (cruel/unusual punishment, ex post facto, etc.)
c.    Common law
d.    The Model Penal Code (MPC) (ideal set of criminal statutes).  Has greatly influenced criminal law reform. States have adopted large portions or used it for guidance.
IV.          Gopnick, The Caging of America:  25% of U.S. population in prison
V.  The criminal process:
Pre-trial (discretion is a major theme of the process):
a.    Legislation
b.    Commission of offense (alleged)
c.    Report
d.    Investigation
e.    Arrest (standard: probable cause)
f.     Charge: by a complaint or an information (document setting out the formal charges against the accused and the basic facts relating to them)
g.    Grand Jury indictment in some state & all federal courts
h.    Plea
Trial (6th Amendment, the exception not the rule):
a.  Right to a speedy and public trial by an impartial jury (Duncan v. Louisiana, 1968)
b.    Jury selection
i. 6-12 jurors
ii. Voir dire
 Entitlement to a fair cross section of the community
 If a potential juror’s response demonstrates partiality, the juror is excused “for cause.”
 Prosecutor/Defense attorney is also entitled to a limited number of “preemptory challenges”
– not based on cause, seem biased based on intuition
 Cannot violate based on race or gender (14th Amendment)
c.    Prosecution presents evidence
d.    Defense attorney can make a motion for directed verdict of acquittal: asserts the presumption of innocence, claiming The People failed to overcome the presumption in its presentation of its case. If there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. (Curley v. U.S., 1947).
e.    Defense presents evidence
f.     Closing arguments
g.    Judge instructs jury (c.b.11 for reasonable doubt sample instructions)
h.    Jury deliberation and decision (decide only if guilty/not-guilty).
i.      Sentencing
j.      Post-trial: Appeal?
V.            Proof beyond a reasonable doubt & the presumption of innocence
a.    Defined: A juror’s mind must be in a subjective state of near certitude of guilt.
b.    Constitutionally required standard: beyond a reasonable doubt MPC § 1.12(1).
c.    Rationale: to maintain the community’s respect and confidence in the application of criminal law.
d.    Rationale: It is far worse to convict an innocent man than to let 10 guilty men go free.
e.    A conviction based upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence (Owens v. State).
f.     Owens v. State (c.b.13):
                                          i.    Facts: D found unconscious behind the wheel of a running vehicle with its lights on and several beer cans in the passenger seat and a can between his legs. Note: DWI cannot be charged for driving on private roadways/parking lots.
                                         ii.     3 factors to lead to an unreasonable hypothesis of innocence: (1) his driveway or someone else’s? (unknown) (2) people don’t normally carry empty and open beer cans to their car after consuming them (more likely he was coming than going); (3) Suspicious complaints about a neighbor’s activities in their driveway are usually not called in, suggesting it was someone else’s driveway.
VI.          Punishment: Initial Considerations
a.    Why ask why? Punishment is unpleasant and we need to legitimately justify why we cause this unpleasantness. We must determine if something is punishment because constitutional safeguards might apply.
b.    Who should be punished? How much punishment is appropriate? Should we use more non-incarcerative methods of punishment?
c.    What is punishment?
                                          i.    Greenawalt’s (c.b.30,34) definition:  Punishment requires justification. We need congruence between threat and actual performance because future threats will be taken less seriously if past threats are not
fulfilled. Punishment is:
1) Performed by, and directed at, agents who are responsible in some sense.
2) Designed to be unpleasant.
3) Usually preceded by a judgment of condemnation.
4) Imposed by one with authority to do so.
5) Imposed for breach of an established rule of behavior.
6) Imposed on the one who violated the rule.
ii. Methods: Restitution, imprisonment, fines, seizure of property, rehab/counseling (could depend on the person if it is considered punishment – meant to be productive and not just punitive – Greenawalt would not consider it punishment because it is not unpleasant), community service, death, shame, threat/warning, loss of privileges, commitment of a predator (Greenawalt says this is not punishment because it is meant more to protect the public than to punish).
                                         ii.    Kansas v. Hendricks, 521 U.S. 346 (1997):  D’s sentence was extended beyond his punishment (he was civilly committed for mental illness. D argued this was double jeopardy. Commitment under the Act does not implicate either of the 2 primary objectives of criminal punishment: retribution or deterrence.
d.    Approaches to punishment: Halden Prison versus Pelican Bay Prison
                                          i.    Halden: utilitarian – cultivates a respect of the society that is punishing them. Treats them with 3 dignity by giving access to comforts and educational services, etc. that poor criminals typically lack access.
                                         ii.    Pelican Bay Prison: Retributive – Does the criminal deserve the treatment of Halden?
VII.         Theories of Punishment
a.    Utilitarianism:  Punish criminals because it is

1.    Positive: Offers a justifying principle — The guilty should be punished because they deserve it.
2.    Negative: Offers a limiting principle – The innocent should not be punished because they do not deserve it.
                                         ii.    Hypo: Survivor gone awry – Students are shipwrecked and one student is tried and convicted of killing another. The students leave the island. Positive retributivism (Kant) says the student deserves to be killed prior to everyone leaving the island. Utilitarian says the student should not be killed because it accomplishes nothing.
                                        iii.    Stephen: Hatred & Vengeance – It is highly desirable that criminals should be hated. Punishment should give expression to that hatred.
                                       iv.    Morris: Punishment as Right– We have a right to punish deriving from a fundamental human right to be treated as a person. This fundamental right is a natural, inalienable, and absolute right. This denial implies the denial of all moral rights and duties.
                                        v.    Hampton: Punishment as Right/Defeat– The purpose of punishment is to eliminate the criminal’s advantage.  Those who wrong others objectively demean them. They fail to realize others’ value rules out such wronging. They falsely overvalue their own value to justify such wrongdoing.
h.    Hypo: the Atkinson case
i.      MPC §§ 1.02(1), (2)
j.      Statutory sentencing considerations – utilitarian and retributive goals (People v. Du, 1991(cb.34) / People v. Superior Court, 1992(cb.51) – Judge sentenced Du to 10 years in state prison but then suspended the sentence to place her on probation. Court of appeals affirmed Judge’s decision. D suspected V was shoplifting juice from her store. A scuffle ensued. V set the juice on the counter and turned to walk away and D shod her in the back of the head, killing her. D was Korean, V was black – possible issue of race. Clearly not self-defense.
                                          i.    Need to protect society
                                         ii.    Need to punish the D for the crime
                                        iii.    Encourage D to lead a law-abiding life
                                       iv.    Deter others – Decision does not deter store owners from reverting quickly to shooting shoplifters because they won’t face jail time…But, we would not want store owners to be afraid of using a firearm when it is necessary for the situation because they fear jail time would be imposed.
                                        v.    Isolate the D
                                       vi.    Seek restitution
                                      vii.    Seek uniformity in sentencing – not considered