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Criminal Law
SUNY Buffalo Law School
Boucai, Michael

CRIM OUTLINE SPRING 2015 Professor Boucai
What is Criminal Law?
-Proof beyond a reasonable doubt is the typical standard
-A criminal case is brought by a state, not private entities
-Potential consequences of conviction include imprisonment and even execution
-Society’s moral condemnation principles- distinguish from civil sanction, a criminal sanction si the judgment of community condemnation which accompanies and justifies its imposition
-Nominalism- “crime defining crime”- crime is anything which is called a crime and a criminal penalty is simply the penalty provided for doing anything which has been given that name
Sources of Criminal Law
1. Statutes
2. State and Federal Constitutions
3. Common Law
4. Model Penal Code (note: no state has adopted the entire code, just used sections as reforms)
Problems with the Criminal Justice System: *see Caging America article
Criminal Process: Pre-Trial
1. Legislation
2. Commission of alleged offense
3. Report
4. Investigation
5. Arrest (standard: probable cause)
6. Charge (who and which crime)
7. Grand jury indictment in some state and all federal courts
8. Plea
Criminal Process: Trial
1. Jury selection
2. Prosecution presents evidence
3. Defense presents evidence
4. Closing arguments
5. Judge instructs jury
6. Jury deliberation and decision (using beyond a reasonable doubt standard)
7. Sentencing
8. Post-trial (includes appeal- criminal defendants have a right to appeal)
MPC 1.12(1) Presumption of Innocence
-No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt.  In the absence of such proof, the innocence of the defendant is assumed
Defining Proof Beyond a Reasonable Doubt
1. “Firmly convinced” instruction- proof that leaves you firmly convinced of defendant’s guilty (firmly convinced=guilty)
2. “No waver or vacillation” instruction- defines reasonable doubt negatively, an influencing doubt
3. “No real doubt” instruction- more concrete and most helpful to jurors
4. “Thoroughly convinced” instruction- helpful to jurors
Theories of Punishment
-Whether and how we can justify punishing those who commit crimes
            -Needs to be justification- nature of the punishment
            -Practical reason for punishment- design better punishment, find other means of coming to the same end
            -Political morality- source of punishment (undertaken by the state for the people- why should people feel comfortable justifying punishment)
*Note on Commitment to Sexual Predator v. Commitment to Someone Who Committed an Ordinary Offense
-Status needs to be proved beyond a reasonable doubt
-Kansas v. Hendricks- lock up sexual predator until he is mentally sound statute.  Court said civil commitment does not constitute punishment
Approaches to Punishment
-Retributivist- punishment is justified because people deserve it, people that commit a crime deserve to be punished- justification is found in the prior wrongdoing
-Utilitarian- justification of punishment lies in the useful purposes punishment serves, punishment is justified on the basis of the supposed benefits that will accrue from its imposition (instrumentalist, consequentialist)
Utilitarian Justifications for Punishment (Betham)
-Pass laws that maximize pleasure and minimize pain to increase happiness and decrease mischief
-There is no groundless punishment- no punishment where triggering act was painful/harmful ex. victimless crimes
-Not inefficacious- punishment cannot prevent the mischief ex. people who cannot be persuaded by punishment (sex offenders, drug addicts)
-Not unprofitable- too expensive, mischief it would produce would be greater than what it prevents ex. death penalty for minor violations
-Not needless- where the mischief may be prevented or cease of itself, that is at a cheaper rate ex. social provision rather than punishment (laws that criminalize offensive speech)
Characteristics of Utilitarianism (Greenwalt)
1. General Deterrence- knowledge that punishment will follow crimes deters people from committing crime
            -Assumes people are rational, self-interested actors
            -Making cost/detriment decisions
            -Risk v. reward- weighing in on how extensive the punishment is and the certainty of punishment
            -Punishment can help deter others- it can be subconsciously feared or watching someone else get punished can create an association with fear and the action
            -Greater the temptation to commit a crime and the smaller the change of detection, the more sever the penalty should be
2. Individual Deterrence- creating fear in the offender for repeating the act, to deter an offender from repeating his actions, a penalty should be severe enough to outweigh the possible crime benefits
            -More severe punishment is warranted because the first punishment has shown ineffectiveness, only applicable by predicting future dangerousness and keeping an offender detained for that said time and benefit for society (or else it is mischief that should not be imposed)
3. Incapacitation and other forms of risk management- imprisonment or confinement to prevent persons of dangerous disposition from acting upon their destructive tendencies
4. Reform- helping an offender be aware and prevent further wrongdoing- rehab, self-control/improving skills
*Utilitarian hypo: punishing the innocent- punishing the innocent is justified under utilitarianism because one is sacrificed for the good of the many
Retributive Justifications
-Punishment because one deserves it
-Negative Retributivism- the innocent should never be punished, punishment will not prevent future crimes in this case
-Positive Retributivism- offers a justifying principle-guilty should be punished because they deserve it
MPC 1.02(1)-(2) Purposes and Principles of Construction
-Guidelines for interpreting provisions that define crimes
1.02(1)- The general purposes of the provisions of 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 ***General Deterrence
            b. to subject to public control persons who conduct indicates that they are disposed to commit crimes ***Incapacitation
            c. to safeguard conduct that is without fault from condemnation as criminal ***Negative Retributivism
            d. to give fair warning of the nature of the conduct declared to constitute an offense ***General Deterrence
            e. to differentiate on reasonable grounds between serious and minor offenses ***Positive Retributivism
1.02(2)- The general purposes of the provisions on sentencing, applicable to all official actors in the sentencing system are:
            a. in decisions affecting the sentencing of individual offenders:
                        1. to render sentences in all cases within a range of severity proportionate to the gravity of offenses, the harms done to crime victims, and the blameworthiness of offenders
                        2. when reasonably feasible, to achieve offender rehabilitation, general deterrence, incapacitation of dangerous offenders, restoration of crime victims and communities, and reintegration of offenders into the law

much punishment is needed.
Holding: Sentence was not grossly disproportionate and does not violate the 8th amendment
Jury Nullification
-What is jury nullification? The power of the jury to acquit with finality no matter how overwhelming the proof of guilty. The jury may ignore the facts and the judge’s instructions on the law and acquit the defendant/ jury returns a verdict of not guilty despite their belief the defendant committed the charged crime. Just may require a certain result.
-Jury nullification can be a protection for unjust laws, but also undermine the rule of law
-Nothing can be done if jury uses it nullification power; a not guilty verdict is final and the government cannot appeal because it would violate double jeopardy
***State v. Ragland
Supreme Court of New Jersey 1986 p. 19
Facts: Defendant was charge with various offenses, including armed robbery and possession of a weapon by a convicted felon.  At the conclusion of trial, the judge instructed the jury that it must convict of the possession charge if it found that the defendant possessed a weapon during the commission of the robbery.
Rule: The jury’s right to acquit despite overwhelming evidence of guilt is not a right of the accused but a power of the jury. 
Holding: Conviction reversed. 
***Lawrence v. Texas (Handout)
Facts: Police responded to a reported weapons disturbance and entered the home where the plaintiffs lived.  The two men were engaged in sexual activity which was illegal by Texas statute.  They were arrested and charged with violation of the statute that made it a crime for two persons of the same sex to engage in certain intimate sexual conduct
Rule: While homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the 14th amendment.
Holding: Reversed, this holding violates due process. Morality was the only interest in the Texas sodomy law and this is an insufficient justification to uphold criminal law.
Harcourt (article) Two Great Debates
I. 19th Century
1. John-Stuart Mill
-society based on self development, important goal of government is the protection of liberty. Harm principle, where the goal of laws is self-protection, and try to ensure no harm. The only way to interfere without others rights.
2. Lord James Fitz-James Stephens
-Legal Moralism- law must reflect moral sensibilities. Criminal laws are justified in reference to societies principles. Even if no harm, might still bc so wicked, need to be punished (ie even if no self-protection needed, must be prevented).
II. 20th Century
1. HLA Hart- focus on the harm to individual, follow Mill.
2. Patrick Devlin- suppression of vice is laws business. Established morality is necessary for welfare of society, public morality is defined in terms of harm to society. Problem with harm? Its subjective. What counts as morality? Think it is societal, said is what any right-minded person considers to be moral.