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Criminal Law
University of California, Hastings School of Law
Weithorn, Lois A.

Outlining: use cases as examples for principles/concepts, headings; use cases for examples within analysis, keep complexity and nuance in your answer, don’t over simplify to come up with easy answers
·        Traditional v. MPCà differences should be recognized and fleshed out in subheadings
·         Exam: 2 questionsà likely a policy question, and an analysis question
o       Criminal liability of particular individuals in a fact pattern
o       Policy from point of view of someone who is working as a leg. Aid
o       Don’t worry about other states; laws except CA
o       Trends in the law, areas where there are different doctrines in different jurisdictions, uniform v. disparate
o       Where there are disputes and how they affect the analysis
o       Open-book, hand-outs, bring in outlines and class notes


Ch. I—OVERVIEW
·         the architecture of the criminal justice system: process, participants, and the role of discretion
·        The start of a criminal case – police discretion – the first portal
·        Charging: the prosecutor’s office
o       The charging decision – prosecutor’s discretion
o       The applicable law – common law vs. legislative statute; MPC
o       Grand jury vs. prosecutorial charging and preliminary hearing
§        Grand jury – closed and confidential
§        Preliminary hearing – open court in front of a judge
o       In the courthouse – judicial discretion
§        Arraignment, counsel, and settings
§        Plea negotiations
§        Discovery
§        Trial
§        Post-trial: sentencing and probation – determinate vs. indeterminate sentencing
o       Participants

Ch. II—PUNISHMENT
·        Introduction
·        What is punishment
o       Civil commitments – punishment or not?
·        Why punish
·        Retribution – just desserts
o       x was done, y is deserved.  Punish the crime, not the individual
o       not looking at future consequences of punishment – it is a backwards looking theory of punishment
o       Proportionality – punishment should be proportionate to the crime.  
o       Harm retributivists
§        what is really important is how much harm was caused
o       Culpability retributivists
§        more concerned with the action/intention as opposed to the result – focused more on the mental state of offender
·        Deterrence – reducing crime through fear of punishment
o       General deterrence
§        Frighten the general public – potential offenders
o       Specific deterrence
§        Frighten the person punished from re-offending
o       For deterrence to be effective, those who are the focus of the deterrence factor must be deterrable.  The cost must be greater for the benefit for deterrence to work.
o       Certainty of consequences vs. magnitude.
·        Incapacitation – Deprives criminal of the ability to commit the crime.   Cannot re-offend if they are incarcerated.
o       Underlying assumption that criminal’s behavior is predictive of future behavior – likely to offend again.
o       Collective
§        General approach.  Someone engages in a criminal act, anyone engaged in that act would get a similar sentence.
o       Selective
§        trying to find a subgroup of offenders that most needs a strong response in terms of incapacitation.
§        Gives a group of offenders a longer sentence than others who committed similar offense
§        Look at way in which offense was committed (violence or not); repeat offender or not.     
o       Beyond incarceration, another type of incapacitation would be chemical castration.
·        Rehabilitation – changing the person in such a way that they no longer desire to engage in offending behavior
o       One area where rehabilitative model is making a resurgence is with first-time non-violent drug offenders.   Community-based drug treatment programs rather than prison.
·        Denunciation – focuses on social msgs which we are sending when we declare an individual morally blameworthy
o       Both from standpoint of message sent to offender and society at large, we are drawing a line in the sand as to what behavior is acceptable and what is not
o       By defining what is and what is not criminal, we promote people’s understanding of social values.
·        How we punish
o       Types of punishment
§        Incarceration; shaming; experimental
o       Implementing punishment
o       Sentencing power and discretion
§        Federal sentencing guidelines
ú         Advisory, rather than mandatory
o       An alternative approach to punishment: restorative justice – making amends for the offense
§        responsibility of offender to make things right, both with victim and larger community
§        reintegration of offender back into community.  Allows offender back into community, and allows community to help shape the offender.
·        How much punishment
o       Proportionality – liability must be assigned according to relative seriousness of offense
o       CA Three Strikes Law—Proportional or not?

Ch. III –MAKING CRIMINAL LAW
Legislators and Judges: Doctrine of Legislative Supremacy, Judicial Interpretation
·

status; punish for doing as opposed to being
·         Blameworthiness requires an actà retribution, culpability, not comfortable blaming people who have not done anything
o       Deterrenceà must involve action from which to deter people
o       Problems of proof
o       Incapacitation: can think whatever you want but not carry out… don’t need to incapacitate people for simply thinking thoughts that may be out of one’s control
o       Profiling: requiring an act limits inferences t what are objectively observable
AFFIRMATIVE ACT: Prosecution must show without reasonable doubt that defendant engaged in the act
·         An act, must be voluntary and while actor was consciousà can’t always make a clear distinction
·         Exceptions:
o       Mental State must be demonstrated that is typically set forth in the statute;
o       Result Crimes( as opposed to Conduct Crimes): haven’t committed crime if the result has not been achievedà someone must die for the crime to b committed
§         Causation: your action caused the death
o       Attendant Circumstances: something in the situation that must be proven in order to find the defendant liable for the particular crime
§         statutory rape: attendant circumstance is age of person with whom the defendant had sex (usually under 16)
§         burglary of an occupied dwelling as opposed to an abandoned structure: was the structure an inhabited dwelling (attendant circumstance)
Voluntariness: Model Penal Code § 2.01 (1985)à American Law Institute’s attempt to reform Criminal statutes to reflect more modern values, promote more uniformity among the states, to modernize terms, etc. 50s-60s, adopted wholly or piecemeal by 2/3 of states, still influential for states that did not adopt it
·         1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable
·         2. The following are not voluntary acts with the meaning of this Section:
o       a) a reflex or convulsion