CRIMINAL LAW Colquitt – Fall 2013
Nature of Criminal Law
1. Definition of a crime:
a. Anything lawmakers say is a crime
b. Causes “social harm,” in that the injury suffered involved “a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity”
2. Difference from Civil law
a. Societal condemnation and stigma that accompanies the conviction
b. Punishment for blameworthiness of person
Burdens of Proof
1. Burden of Production
a. Generally
i. The prosecutor has the burden of production regarding elements of the crime charged
ii. Sufficient that the rational trier of fact – typically, a jury – may reasonably determine that the elements have been proved beyond a reasonable doubt
b. Affirmative defenses – SPLIT COURT
i. “Any foundation of evidence to support a defense”
ii. “Sufficient for a reasonable juror to find in defendant’s favor”
c. Effect
i. Benefit of the doubt – if the evidence does not establish a reasonable basis of each element of the crime the judge must dismiss the claim in D’s favor
ii. Evidentiary doubts – unless the evidence excludes the possibility of innocence, the court must let the jury decide – goes to the credibility of evidence
2. Burden of Persuasion
a. Generally
i. Factfinder will determine whose factual claims are more persuasive
ii. The party carrying the burden bears the risk of failing to convince
b. Presumption of innocence
i. Prosecution must persuade the factfinder of every fact necessary to constitute a crime
ii. It is far worse to convict an innocent man than to let a guilty man go free
3. Burden of Proof (combination of the burden of production and persuasion) In re Winship
a. Beyond a Reasonable Doubt – Due process protects the accused from conviction except upon proof beyond a reasonable doubt of every element necessary to constitute a crime to each and every member of the jury.
i. Substantive
1. Fundamental right not to suffer punishment absent a reliable proof of fault for every element. (Patterson v. New York)
2. Defendant’s liberty interest is at stake
a. Loss of liberty
b. Stigmatized by the conviction
3. Reduces the risk of convicting an innocent person
ii. Procedural
1. Due process requires that legal proceedings be conducted fairly and comply with established rules and principles
2. Provides substance to the presumption of innocence
3. Builds respect and confidence in the community
b. Affirmative Defenses – SPLIT COURT
i. In states that allocate to the defendant the burden of persuasion regarding defenses, it is typical to require her to prove the validity of the claim by the less strict preponderance of the evidence – more likely than not.
1. A legislature may shift the burden for an affirmative defense
2. Once defendant satisfies burden of production, it is up to the state to disprove the defense
c. Explaining reasonable doubt
i. “It is not merely possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. Instead, reasonable doubt exists when the state of the case leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”
ii. A reasonable doubt of a fair-minded juror honestly seeking the truth after careful and impartial consideration of all the evidence in the case.
iii. It is a doubt based upon reason and common sense.
d. Model Penal Code – same
i. Production
1. The prosecutor has the burden of production regarding each element of an offense
ii. Persuasion – beyond a reasonable doubt
1. The general rule is that the prosecution must prove every element of an offense beyond a reasonable doubt
iii. Affirmative defenses
1. The prosecutor is not required to disprove an affirmative defense unless there is evidence supporting such defense
4. Jury Nullification
a. Power to nullify the law if they feel compelled to do so
i. Arguments
1. Violates our basic notions of who defines a crime
2. Creates a safeguard for community outrage
5. Presumptions/Inferences
a. Mandatory (rebuttable) presumptions
i. Requires a finding of the presumed fact upon proof of the basic fact, unless that finding is rebutted by the opposing party
ii. MPs are unconstitutional when the presumed fact is an element of the crime charged
b. Irrebuttable presumption
i. Requires the jury to find the presumed fact upon proof of the basic fact, even if the opposing party introduces rebutting evidence
ii. An IP is unconstitutional for the same reason as MPs.
c. Permissive Presumptions (inferences)
i. One in which the factfinder may, but need not, find the existence of the presumed fact upon proof of the basic fact
ii. Not unconstitutional per se, because they still require prosecution to prove every element of offense.
iii. Must be a rational connection between the basic fact and the presumed fact
d. Model Penal Code
i. Mandatory presumptions
1. Does not recognize mandatory presumptions
ii. Permissive presumptions
1. The code permits permissive presumptions
2. Unless it is so lacking in foundation that the defendant is entitled to a directed verdict.
3. The law allows the jury to permit the inference
Punishment
1. Must develop theories to justify taking life, liberty or property of another
2. Ascertain what conduct is punishable, what and how must punishment fits crime
3. Criminal law must be fair in dealing with wrongdoers
Theories of Punishment
1. Retribution (“getting his just deserts”)
a. Punishment is justified when it is deserved
b. The wrongdoer must be punished, whether or not it will result in crime reduction
c. Punishment is proportional to the blameworthiness of the offender.
d. Proportionality – the degree of punishment should be gauged by the degree of wrongdoing or wickedness
i. Positive Retribution – the claim that a just society must impose punishment equivalent in severity to the seriousness of the crime
ii. Negative Retribution – the claim that the seriousness of the offense sets an upper limit to permissible punishment
e. Forms of Retributivism
i. Assaultive retributivism – it is morally right to hate criminals
ii. Protective retributivism – punishment is a means of securing a moral balance
iii. Victim vindication – punishment is a way to right a wrong
f. Criticisms:
i. Society’s goal should be to reduce overall suffering, not cause more of it
ii. Founded on emotions – the infliction of pain need n
or morally culpable persons escaping punishment
b. Three Parts of Legality:
i. Fair Notice: Criminal statutes should be understandable to reasonable, law-abiding persons
ii. Undue Discretion in Law Enforcement: Criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis
iii. Strict Construction of Statutes: Judicial interpretation of ambiguous statutes should be biased in favor of the accused (the lenity doctrine)
1. FAIR NOTICE – principle of non-retroactivity – no punishment without law.
a. Principle of fair notice is on the basis that someone should be able to choose between right and wrong
b. When a new penal statute is applied retroactively to make punishable an act, which was not criminal at the time it was performed, the defendant has been given no advance notice consistent with due process.
i. Options
1. May give interpretation a retroactive effect unless reading is “unexpected and indefensible”
2. May also apply interpretation prospectively, future actors are on notice
ii. Rationale:
1. Arbitrary use of Law: The principle is designed to serve fundamental justice by preventing the arbitrary and vindictive use of the law
2. Retroactive application: Maximizes the opportunity of individuals to pursue their own purposes and ends by reducing the risk that one’s lawful conduct will be punished retroactively
3. Fair Notice: Legislative enactments give fair (notice) of their effect and permit individuals to rely on their meaning until explicitly charged
a. Distinction: The Supreme Court has never held it unconstitutional for state judges to create new common-law crimes.
c. Vagueness Doctrine – principle of maximum certainty – the law must be announced in reasonably clear terms, so that the average person does not have to guess its meaning. (imprecise, vague)
i. A vague statute has two flaws:
ii. It fails to give adequate notice of what is prohibited
iii. Invites arbitrary and discriminatory enforcement
d. When statute is vague: (Courts look at)
i. The purpose of the statute
ii. The extent to which the statutory ambiguity was necessary to further the legislative goal
iii. The impact of the statute on the protected rights of the individual
e. It is fair to say that the doctrine is largely fictive because it focuses on a sort of lawyer’s notice that seems far removed from ordinary life.
2. STRICT CONSTRUCTION OF STATUTES
a. Principle of lenity – in criminal prosecutions ambiguities in the statute must be resolved in the defendant’s favor.
i. Courts must give statute its plain and definite meaning
ii. When statute is unclear and ambiguous, the court must ascertain leg. intent
iii. When two or more equally reasonable interpretations of a statute persist, interpret in favor of the defendant
