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

Fall 2013 (Rappaport) – Crim Law

Overview of the Criminal Justice System

·         The government is an actor
·         Violation against the state/gov't
·         Not about what the victim wants; public interest–how we want society to see this. 
o    Deals with “public harms”
·         Diff from civil law: Diff procedural protections — Beyond reasonable doubt
·         Involves stigma/condemnation
·         Use of state power to deliberately harm and condemn culpable individuals who have violated important public rights & interests.

1.       Investigation
a.       Resources, is it worth it? (is there a suspect, relevant crime, other agency, etc)
b.      Police have enormous amount of discretion — you can't do anything if police decide not to pursue
i.            Unless you can prove an enormous violation of constitutional rights (gender/race bias, excessive force, systemic violations, etc)
ii.         Also, situational. Ex, DV leads to arrest of an individual
c.       Arrested à booked, etc
2.       Charging stage
a.       How is it seen socially?  Public perception v. intimate setting  (domestic violence)
b.      LE contacts prosecutor
c.       Strike? à depending on the area, prosecutor may not bring charges for a 3rd strike if the crime is non-violent
d.      Consider the scope of the law
e.      Prosecution – officer of the law
i.            Influences- — Political pressure, institutional, career
ii.            Certain standards that must be observed – probable cause (reasonable basis),
f.        Grand jury or prelim
i.            Grand jury – 23 persons, reviewing evidence to see if formal charges can be pressed. Probable cause (20-50%). However, grand jury tends to indite (?) in most cases.
ii.            Magistrate (judge) – Prelim – files a complaint directly to the court. Prelim is the check. Mini trial. Hearsay evid admitted. Probable cause -> bind over case for trial  
3.       Trial stage
a.       Arraignment – informed of the charges, enter a plea.
b.      Plea bargain – save resources/ justice/social reaffirmation | avoid hung jury, not guilty, etc
i.            Fear of “guilty” despite being not guilty — “sweet deal” over risk
c.       No plea bargain –> trial
d.      Defendant has the right to a jury trial. Waive it by pleading or asking for a bench trial.
e.      Judge, as “law interpreter,” explains it to jury.  (or acts as bench)
i.            Rare circumstances, judge can butt in. standard is severe.
f.        Bench trial – waive right to a jury; judge acts as both
4.       Sentencing stage
a.       Each facet has input on how a case is resolved
b.      Double jeopardy clauses  – federal and state are seen as different sovereigns, thus state can prosecute and then federal can prosecute. 
c.       There are death penalty juries, but in most cases, judges impose sentences
Jury nullification

Discretion in the system
·         Power to act justly, but also power to act discriminatorily

Purpose of Punishment

Dudley v. Stephens:
1.       Facts
a.       Stranded at sea – V (richard parker) should be sacrificed so, Killed him, ate him
b.      Immunized Brooks b/c brooks is a witness
2.       Issues
a.       Was it necessary?
·         Necessity factors:
Legal authorities
Defense from well esteemed professional
Not binding
From treatises, making convincing arguments
International cases 
·         Justice:  has to be consistent with rules of morality, but does not need to conform perfectly.

Policy (Utilitarianism)
·         Did not wait
-4 dying vs 1 dying
·         Speed up the process of dying
·         Insanity
·         Affirmation of human life?
Social welfare

Example:  State of Florida v. Johnson
crack use during pregnancy
Statute charged:
Florida Statute § 893.13(1)(c)1 (1989)
c) Except as authorized by this chapter, it is unlawful for any person 18 years of age or older to deliver any controlled substance to a person under the age of 18 years. . . . Any person who violates this provision with respect to:
1.       A controlled substance . . . is guilty of a felony of the first degree. . . .
Cocaine is a controlled substance. A Florida prosecutor did charge Ms. Johnson with violating the statute. Consider the perspective provided by Professor Dorothy E. Roberts on the Johnson case: 
Delivered drugs to the fetus while pregnant? (Any PERSON under the age of 18.)
Period of time when the baby is outside the womb before the umbilical cord is cut. Considered a person. —  
Defense: Definition of delivery? (Can be – delivery as having some sort of mens rea.) 
·         Controlled substance — is cocaine metabolite a “controlled substancing”

Supreme court reversed it because “delivery” is vague and there is no support — Rule of lenity

Need to look at:
·         Court decisions – Stare decisis (preceding opinions)
·         Texts
o    Sometimes unclear; Battle of the dictionaries. Interpreting words, meanings, etc
·         Legislative history
o    How bills and public policy makers viewed it when they passed/drafted the bills.
o    See what the chief sponsors said about the bill
o    Committee reports
·         Rules of statutory construction
o    Rules developed over time on how to interpret certain legal issues
·         Ex. Rule of lenity – no one should be prosecuted if they don’t know.
It’s for interpreting the word to the advantage of defendant.
·         Other courts'/commentators
o    Persuasive opinions,
·         Questions of policy and justice
o    Fairness issues
·         Issues of disparity, discrimination, stratification, etc
·         Does it actually deter drug usage in pregnancy?
o    Culpability issues
·         Moral culpability
o    Unintended effects
·         Policy effects, how others may avoid committing act
·         Policy and fairness issues

Stase decisis – to stay by a decision that was decision. Follow decision made previously.
Factual challenge – about the facts, or lack of facts
Legal challenge – about the statute
Moral principles – principles that justify actions.

Utilitarian Justifications for Punishment
·         Social Utility – Everybody’s happiness summed together, maximize it.
o    Benefits outweigh the cost (dollars spent, emot

evidence” (sentencing factors) to determine if it was a hate crime. -> 12 year sentence
§  Criminal elements – stipulated by D or as a fact found by the jury. (judge has no authority to determine this)
§  D’s claim is that the statute is unfair in that it gives power to the judge to make the decision of further elements of the crime to increase the sentence above 10 years.
§  Also factor of bias = criminal elements of a crime; must be tried by a jury.
§  How to tell if something is a criminal element versus a sentencing factor?
Legislature would affirm
But this would lead to a problematic approach.
Sentencing phase does not have protections of trial (evidence needed, opinions, etc)
Any factor that increases the penalty beyond prescribed statutory max must be submitted to a jury and proven beyond reasonable doubt.

o   Blakely v. Washington
§  Challenging Apprendi
§  8th amendmend does not allow for that much restraint for cases.
§  Presumptive sentencing for kidnapping is 49-53 months, but can go up to 10 years. – WA allows judge to change sentencing if they find exceptional factors.
§  Judge found “deliberate cruelty” –> 90 mo (7.5 yrs)
·         Supreme court argues that “deliberate cruelty” is a criminal element that needs to be tried
§  How do you define statutory maximum?
·         Max sentence judge impose based solely on the facts reflected in the jury verdict or admitted by the defendant.
·         Max sentence judge impose based solely on the facts reflected in the jury verdict or admitted by the defendant.
§   raises question about authority of judges to decide statutory maximum.
§  Convicted of “kidnapping” — only. Absent further fact finding. So, 53 mo would be statutory maximum.

o   Booker v. US (also with a case, Fanfan)
§   D convicted of selling 50g crack; judge found that he sold add’l 566g.
·         range 210-262 m -> 360mo – life 
§  Statutory max under apprendi (50g) = 262mo. Which means that over must be tested by a jury. 
§  Sentencing guidelines as advisory but not binding.
·         Read and consider, not follow. Sentences can be 0-life
§  Apprendi not as much a problem.

o   Change with Revolution – California
§  1970s – determinate sentencing -> determininate sentencing act
§  3 possible sentencing outcomes (normal term is 2n’d choice)
§  3 strikes is ok.  
o   Cunningham
§  Normal sentence 10 years. Sig agg factors -> judge sentence to 16 (fact finding of deliberate cruelty).
§  Supreme court said CA sentencing was unconstitutional
§  Legis -> SB-40: Greater judicial discretion
o   Aleen v. US –
§  apprendi is important – applies to facts that apply to the statutory minimum as well