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Criminal Law
University of California, Hastings School of Law
Rappaport, Aaron

Crim Law Fall 2013 Professor Rappaport
(I.)                        Introduction to the Criminal Law: Punishment and its Purposes
I.                   Criminal Law
a.       Use of state power to deliberately harm culpable individuals who have violated important state interests
b.      Public law – Gov’t as prosecutor
c.       Sanctions
i.                     Most serious harms. Jail/DP, not just compensation.
d.      Public harms
i.                     Breach of public rights
ii.                   Stigmatism and condemnation of criminal behavior
e.       Standard
i.                     Beyond reasonable doubt
ii.                   Different from preponderance of evidence standard for civil
II.                4 different phases
1.)   Investigation
a.       Police Discretion.
i.                     considerations include
(1)  police policy,
(2)   legal boundaries,
(3)  the information available about the case,
(4)  social and cultural perceptions,
(5)  the gravity of the harm,
(6)  any criminal history of the accused,
(7)  and resources.
(8)  Police discretion is either applauded or challenged depending on action or inaction (ex: inaction for DV crimes has been critiqued)
2.)  Charging
a.       Prosecution.
i.                     Prosecutor decides whether to press charges, has broad and unreviewable discretion whether to pursue.
ii.                   Big impact on how a criminal statute gets enforced. Goal is justice (defense is to win at all cost).
iii.                 Potential influences: political/institutional/media/personal
iv.                 Charging
(1)  Sometimes have a “no-drop” policy for certain cases.
(2)  Aggressive prosecution has been shown to lower crime rates (ex: DV prosecution).
(3)  A prosecutor’s decision not to prosecute a case is virtually unreviewable, but the decision to charge can be challenged at various stages of the case.
v.                   Set of constraints of prosecutorial discretion:
(1)  Ethical
(2)   legal restrictions
(3)   Grand jury indictment (Minority)
i.                     Probable cause standard.
ii.                   Not a powerful checkàalmost always indict b/c closed door hearing with no judge or defense counsel.
iii.                 Issues “Indictment” if enough evidence
(4)  Preliminary hearing (Majority)
i.                      Prosecutor files a complaint. Judge schedules a preliminary hearing (mini trial)
ii.                   Both sides allowed to provide evidence
iii.                 hearsay evidence allowed
iv.                  Probable cause standard
v.                    If judge decides enough evidence to go through to trial, issues “information”
vi.                 In some jurisdictions, prosecutors may select between the grand jury or direct charging process for each serious case.
3.)  Trial
a.       Plea Bargaining – Most cases end in guilty pleas
i.                     Substantive criminal law, rules, and standards guide plea bargaining such as minimum sentence requirements. Ethical and constitutional rules also affect negotiations such as Defense counsel must abide by client’s decision to accept an offer or go to trial, and must report all offers to their clients even if they discourage the offer.
ii.                   As a case progresses towards trial, plea negotiations involve a series of brief conversations in which offers change based on the latest ruling in the case or the perceived strength of the evidence and availability of witnesses.
iii.                 Judges are sometimes involved in plea bargaining and can refuse to accept a plea or change an offer.
(1)  The idea behind plea bargaining is to get early guilty pleas in exchange for lighter sentences than might be if the case goes through a trial.
(2)  Without pleas, courts would collapse because too many cases would be going to trial otherwise.
iv.                 Pros/Cons
(1)  Incentives for prosecution: Resources limited, getting a guilty plead guaranteed, always a risk to go to trial.
(2)  Incentives for defense: Lower sentence. If plead innocent and go to trial might serve a much longer sentence.
(3)  Concerns: include fear/individual liberty/bias/inadequate counsel (core concerns)
(4)  Criticisms include shortage on regulations on plea bargaining.
b.      Arraignment (∆ informed of charges, pleads guilty or not). Once the grand jury indicts or the prosecution files a charging document the court arraigns the accused, who is then labeled “the defendant”.
i.                     Functions of arraignment:
(1)  determine whether the defendant has counsel, would like counsel, or wishes to represent himself
(2)  court informs the ∆ of the charges against him and whether the ∆ wishes to enter plea of guilty or not guilty
(3)  whether the ∆ will be held in custody or remain free on certain conditions. Usually there are further proceedings such as additional pre-trial conferences, motions, or even the trial itself.
c.        Discovery
i.                     SCOTUS interpreted the Constitution to require the prosecution to disclose “exculpatory” evidence (evidence that may excuse a defendant) to the defense, and in some jurisdictions, statutes require the defense to disclose info to the prosecution.
ii.                   Statutes or court rules often govern the timing of required disclosures, failure to disclose or failure to do so in a timely manner forms the basis of numerous trial court proceedings and appeals.
d.       Trial Proceedings
i.                     6th Amendment- Right to jury trial unless waived
ii.                    5th Amendment (1) Right to not be witness against self (2) Double Jeopardy- Cannot be tried again in the same jurisdiction. Federal different from state.
iii.                 Goes to trial if not settled/dismissed
iv.                 Only 5-10% go to trial
i.                     Bench Trial
(1)  Judge or magistrate acts as both the fact finder and decision maker on legal issues.
ii.                   Jury Trial
(1)  Jury-fact finder
(2)  Jurisdictions differ on the # of jurors required for a jury trial, usually range from 6 to 12. Usually criminal cases require jury to reach unanimity to reach a verdict of guilty/not guilty. Failure to unanimous agreement produces a hung jury. In some cases, often serious felonies, the prosecution will retry the case to a second jury, in others, the result induce

Benefit Analysis
i.                     Costs of punishment:
(1)  $ spent on corrections, judges, prosecutors, prisons
(2)  Costs to third parties ($/feelings)
(3)  Harms to the ∆
(4)  Innocent people sometimes punishment for the benefit of others
(5)  strain on courts
ii.                   Benefits (if outweigh costs, justified)
(1)  reduction of crime
(2)  public safety
(3)  Deterrence
(4)  Rehabilitation
(5)  Incapacitation
c.       Utilitarian Justifications for Punishment 3x
a.       Individual benefit
i.                     Contributes to reformation of prisoner through deterrence, and a change in character.
b.      Societal benefit
i.                     Contributes to social improvement by instilling a reformation of manners and habits through regular discipline. New respect for order and authority.
ii.                   Originally, prisons thought to be rehab. But found to be incapacitative, not therapeutic.
c.       Pros:
1.      Strives for the best happiness
2.      Correcting people=maximizing utility
d.      Cons:
1.      Failure to deter.
2.      Failure to hold responsible
3.      Doesn’t Work
4.      Immoral to try to correct someone
5.      Doesn’t get the punishment deserved (Retributive criticism)
6.      Lack of justice
a.       In order to deter, the punishment must be worse than the crime is beneficial/tempting/desirous.
b.      The less likely a punishment will occur, the more severe it needs to be and vice versa.
c.       If two crimes are committed together, the greater offence should be subjected to severer punishment in order for there to be a motive to stop at the lesser crime.
d.      Greater the crime, more reason for severe punishment for deterrence.
e.       Must have rational actors to deter. Must be able to evaluate cost/benefits of committing crime.
f.        Cost:
1.      Unjust punishment of the innocent used to deter others
2.      cannot avoid excessive punishment of the guilty w/o a sufficient deterrent effect to make the social costs worthwhile
3.      Unjustified punishment of the innocents must be accepted to avoid the far greater injustice that leaving all of the guilty unpunished would produce
4.      Willing to trade the welfare of the innocent, who are punished by mistake, for the greater good of the punishment of the guilty
5.      Using the mistakenly convicted for the benefit of society in general
g.       Benefit:
1.       rewards-succeeding in society
2.      happiness
3.      freedom
4.      safety