Shellenberger – Fall 2013 – Criminal Law 1
Criminal Law and Its Processes (9th ed. 2012) by Kadish, Schulhofer, Steiker, Barkow
I. Defining Criminal Conduct
A. Traditional: AR + MR [+ Causation + Result (if required)] = Guilt, absent excuse or justification
B. MPC: AR (general & specific nature conduct) + MR (culpability) + attendant circumstances [+ C + R] = Guilt, absent exculpation
C. 3 types of categories in which to initiate a defense
1. ID Defenses – Wasn’t me. Actually a failure of proof defense.
2. Failure of Proof Defense (negating the elements) – State has not proved beyond a reasonable doubt each of the essential elements of the crime charges, as specified in the applicable statutes and case law, supplemented by general principles of criminality.
3. Affirmative “exculpation” defenses – “even if” defenses (D is not guilty even if prosecution proves elements BRD, D is not blameworthy or is excused) Is D exculpated because evidence shows that D’s otherwise criminal conduct was “justified” or “excused?”
i. Justification: D’s actions were morally correct,
ii. Excuse: D not blameworthy or morally responsible because external or internal forces were such that no one could be expected to act otherwise than the D did
D. Evidence is considered relevant . . . only if it is both probative and material
1. probative is proposition gov’t is trying to prove, evidence tends to make it more likely (example: motive),
2. material in that the proposition would affect the outcome
3. Burden of production (BOP, put matter at issue): A party’s obligation to come forward with sufficient evidence to support a particular proposition of fact. Satisfying the burden of production may also be referred to as establishing a prima facie case. Determining whether a party has satisfied its burden of production is not an issue of fact for the jury; it is an issue of law.
i. Prosecutor has burden of producing and proving each element of the crime charged.
· Must provide sufficient evidence that trier of fact can determine guilt or non-guilt beyond reasonable doubt (BRD)
· If prosecution fails to meet their burden of production, trial dismissed (directed verdict)
ii. if D has burden of production (affirmative defense) and doesn’t meet that burden, the argument is simply excluded, often, without direct evidence, prosecution uses circumstantial evidence and asks fact finder to make inferences (example: deadly weapon inference)
4. Burden of persuasion (BRD [beyond a reasonable doubt], convince fact finder): prosecution must persuade fact-finder BRD of “every fact necessary to constitute the crime charged”
i. Why BRD standard?
· Value judgment in our society. (values good name and freedom)
· Value on liberty. Concern about the power of the state to overwhelm individuals.
· Want the people to have faith in the system. Assured that innocent people are not being convicted.
ii. Affirmative defenses
· D has Burden of Persuasion – usually not BRD, but beyond a preponderance of the evidence
· Proving innocence in affirmative defense has lower standard than proving guilt
5. Difficulty in Determining Burden of Proof and who bears the burden of production of each element:
i. D has burden of production in an alibi defense, but the state has the burden of persuasion.
· Otherwise, it’s a failure of proof defense because the state has not met the ID element BRD.
ii. D claims it was a mistake. Failure of proof defense, no intent to kill. State has to prove intent BRD.
iii. D claims self-defense. True affirmative defense. (Dixon)
· In true affirmative defenses, the constitutional requirement for BRD does not apply. This is because there is no challenge to the elements of the crime. The self-defense claim is an additional element.
E. Sentencing Enhancements – facts that dictate a large increase in punishment can be established merely by a preponderance of the evidence only when the facts at issue are merely “sentencing factors” rather than elements of a separate offence.
1. Apprendi (2000) – made clear that states do not have unlimited discretion to characterize facts as mere sentencing considerations rather than elements of the offense. Case involved hate crimes which doubled the maximum punishment applicable to any offense if the judge found by a preponderance of the evidence.
i. The court held that this is unconstitutional. Any fact that increases the maximum penalty applicable to an offense is an element of the offense, which therefore must be proved beyond a reasonable doubt.
ii. However facts that affect the choice of sentence within an authorized range continue to be treated as sentencing factors, and do not have to be proved beyond a reasonable doubt.
2. Legislatures can require judges to impose a severe mandatory minimum based on a preponderance of the evidence though. (McMillan)
i. Essentially there are ways around this.
F. Presumptions and Inferences
1. Mandatory Presumptions are not allowed in criminal law
i. Conclusive Presumptions: require the fact finder to find the presumed fact, regardless of how much evidence is presented to refute it.
ii. Mandatory-but-rebuttable Presumptions: require the fact finder to find eh presumed fact based on the evidence of the proven fact, unless a certain amount of evidence (rebuttal) is presented.
· These effectively shift the burden of proof as to the presumed fact.
2. Permissive Inferences: Allow/permit but do not require the fact finder to draw an inference. Based on the evidence of the basic or proven fact, the fact finder may find the presumed / inferred fact, or not, as it thinks appropriate. Regardless of the existence and quantity of rebuttal evidence.
i. Must be a rational relationship between the proven fact and the inferred fact.
ii. These are very important in criminal cases, especially in proving mental state elements.
G. In Re Winship (1970): Supreme court held that judge in a juvenile delinquency proceeding cannot apply a lower standard of proof than that applicable in a criminal trial. Presumption of innocence until proven guilty, accused protected against conviction except upon proof BRD of every fact [element] necessary to constitute crime with which he is charged – worse to convict an innocent party than to acquit a guilty party, BRD standard is indispensable to command respect/confidence of community. Due Process Clause protects people beyond a reasonable doubt.
H. Dixon v. US: in a federal prosecution for illegally receiving a firearm, a D who claims duress must bear burden of proving that defense by a preponderance of the evidence, defense of duress does not negate D’s criminal state of mind when applicable offense requires that D have acted knowingly or willfully, but allows D to avoid liability because coercive conditions or necessity negates conclusion of guilt.
i. Keshia Dixon purchased firearms at gun shows under false pretenses.
ii. She defended that she acted under duress of her BF threatening to kill her or her family.
iii. Trial judge required her to prove duress by a preponderance of the evidence instead of requiring the Govt. to prove beyond a reasonable doubt that she did not act in duress.
2. Holding: The crime required D to act knowingly and willfully. She did that. The elements of the crime have been proven.
i. At common law, the burden of proving affirmative defenses rests on D.
ii. Court held that a defense of duress does not negate MR, it is an affirmative defense.
iii. State proved all the elements of the crime – showing that D acted knowing or willfully – and is not, therefore, required to disprove duress.
I. Evidence – The most basic rule of evidence is relevance. Relevant evidence is generally admissible, irrelevant evidence is inadmissible.
1. Evidence has to be:
i. Probative – has to tend to prove something
ii. Material – whether it will affect the outcome under substantive law
2. MR = Intent to Kill = Conscious object or desire to cause death – What is the best evidence to prove intent??
i. Ideally D would have to testify. Too bad 5th amendment says that a D cannot be called to testify in a criminal trial.
ii. 2nd best – circumstantial evidence – evidence showed D had a weapon –> people who kill on purpose often have weapons. He shot the victim…
· Making inferences based on common knowledge. It is reasonable to conclude that…
Þ If you hold a gun to someone’s head and pull the trigger, it is likely they will die
Þ If you do not pull the trigger, it
rse is important because you can’t rehab someone who doesn’t want to be
ii. Assumptions: genuinely remorseful, they can and will work on it
D. Mixed Theories: Stresses the need to distinguish between the aim of the punishment and the limits on its permissible use. (classic mixed theory)
1. Pure utilitarianism arguably could, under some circumstances, require punishment of the innocent or very severe punishment of those who have committed a low-level misdemeanor.
2. Pure retributivism arguably could, under some circumstances call for punishments that on balance do much more harm than good. ( ie. requiring incarceration of an offender whose small children will be forced into foster care as a result)
3. The aim of punishment is utilitarian — to enhance social welfare, especially by preventing crime.
i. We can justly pursue this aim only within retributive limits — by never punishing an innocent person and never punishing a guilty person to an extent disproportionate to his blame.
ii. Social benefit is a necessary but not a sufficient condition of just punishment, and likewise desert is a necessary but not a sufficient condition of just punishment.
4. A person can legitimately be punished only if he committed a crime, only in proportion to that crime, and only if doing so would produce a world with less crime.
i. This approach bars disproportionate punishment, even if a cost-benefit calculus would arguably support it. But this approach also bars punishment that is perfectly proportionate to an offender’s blame, if that punishment would not be socially beneficial under all the circumstances.
E. Commonwealth v. Ritter (PA, 1975) – D shot and killed mistress and tried to commit suicide, had been addicted to alcohol and prone to fits of frenzy. Court had to determine the degree of guilt. The element for 1st degree was willful, deliberate and premeditated. Thereafter, it left the decision for life or death entirely to the J, not specific in statute.
1. Case discusses the death penalty and four theories as the basis upon which society should act in imposing penalties upon those who violate its laws.
i. To bring about the reformation of the evil-doer
ii. To effect retribution or revenge upon him
iii. To restrain him physically, so as to make it impossible for him to commit further crimes
iv. To deter others from similarly violating the law.
2. In cases where a tribunal is called upon to determine the penalty to be imposed upon a murderer, restraint and deterrence should be taken into consideration.
F. Sentencing: Until the 1970s sentencing was at the discretion of the trial judge.
1. Statutory limits on sentences, the prosecutor’s charging power, and the releasing authority of the parole board qualified the trial judge’s power, but the individual judge formally controlled the penalty.
2. That situation still prevails in the majority of the states, but many have moved to limit the judge’s power.
i. By mandating specified punishments (specifically mandatory minimums)
ii. By establishing an administrative agency to promulgate sentencing guidelines that narrow the sentencing range within which judges can sentence, or
iii. By providing for appellate review of trial-court sentencing.
3. Two distinct and general questions
i. How long should a sentence be?
ii. What kinds of punishments are acceptable, regardless of who the decision maker may be?