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


A definition: “Criminal law is the use of state power to deliberately condemn and harm individuals who have violated important public interests” – AR
Criminal law is public law – “the people” pursue justice and resolution of harms
Note: line between civil law and criminal law isn’t always clear, but really matters
Very different constitutional protections, penalties, burdens, evidence, etc.
Class focus is on issues of criminal liability – when has someone crossed the line into committing a substantive crime – what must the prosecution prove / defense disprove?
Good supplement: Josh Dressler – Understanding Criminal Law
Phases of a Criminal Action
Investigation: close cooperation between LE and prosecutors, prosecutors have large discretion re which crimes to investigate and pursue – then present case to GJ or court (depending on jurisdiction) to consider case and issue indictment (true bill or info)
Grand jury system: about 23 private citizens who serve for months and decide whether, based on initial evidence, there’s PC for charges to lie – if so, “true bill”
Minority of jurisdictions (federal system)
Secret proceedings and deliberations
Not the strongest check on prosecutorial overreach; only refuse 3-8% of charges
Preliminary hearing: essentially a mini-trial before judge, both sides can present evidence – judge decides if sufficient PC for charges to lie, if so issues “information”
Majority of state/county jurisdictions
Stronger control over prosecutors
Charging: if charges lie, prosecutors again have discretion of how to move forward
Plea negotiations: counsel and prosecutor negotiate how D will plead, what terms of potential bargain will be – prosecutor can add or drop certain charges in exchange
most cases (approx. 95%) plead out before trial – more than ever
Good: saves resources, can get intel, reduces extreme sentences
Bad: some innocents pressured into guilty plea (risk of trial), almost no court oversight and few rules or regulations – big space for prosecutorial bias
Arraignment: D appears in court and has opportunity to plead guilty/not guilty
Trial: default is classic jury trial; generally short process; parties can get big advantage through smart motion practice pre-trial; voir dire really matters; judges settle law and juries find facts; D never required to testify against herself (5th Am)
D can opt for bench trial (strategic if inflammatory issue)
Jury verdicts must be unanimous – mistrial if hung jury and can retry
No double jeopardy, but can appeal or go federal
Sentencing: really important as 95% of Ds are “guilty” – most action around sentencing
Differing systems: indeterminate (judge has total discretion) vs. determinate (judge must follow rules, less discretion)
Discretion is a double-edged sword – allows for lenience and compassion, but also significant discrimination (ex: racial disparity in DP)
Significant amounts of evidence can be introduced at sentencing phase; at lower evidentiary standards and without input from jury
Statutory Interpretation in Criminal Law
What counts as a crime?
First look at Penal Code passed by state legislature (DPC now requires codification)
Meaning can often be very ambiguous >>> statutory interpretation
Jennifer Johnson Problem: prosecutor charges drug addict mom with drug trafficking for passing drugs to fetus; convicted at trial, but appealed and challenged on meaning of drug “delivery” – does it include passing substances through an umbilical cord?
Tools of Statutory Interpretation in Criminal Law
Plain meaning: what does term commonly mean; dictionary definition?
Precedent: how have other courts interpreted the term?
Purpose: what was congressional intent? Legislative history and committee reports?
Public policy: what are the social consequences of applying certain meaning?
Courts are very hesitant of any meaning that seems unfair / cause injustice
Rule of Lenity: when the text of a criminal statute remains ambiguous, court should read in meaning that most protects the D (i.e., restrict the scope)
Last possible factor – tiebreaker only
Intro to the Model Penal Code
Around mid-20th century, increasing dissatisfaction among many academics and practitioners who felts that state common law and piecemeal codes were outdated, confusing, contradictory, and unpredictable
So the ALI (Am Law Institute) delegated problem to a group of prominent criminal law scholars who created and released the MPC in 1962
Sample code literally intended to be a model – some states (NY) adopted almost fully
CA hasn’t adopted, but judges often refer to it and leg sometimes gets ideas from it
Significant issues, largely around gender and race (pre-civil rights / pre-women’s mvmt)
General classes of crimes (from Kap outline)
Malum in se
Malum prohibitum
Public welfare???
Don’t forget how important procedure is!
Watch out for standards / presumptions / favorability around MTDs/MSJs/MNTs/JMOLs and appeals!
Standard for jury instructions: any reasonable basis > instruct
Must know three jurisdictions: SCL, CA, MPC!!!

Queen v. Dudley & Stevens: shipwreck; several sailors in lifeboat for weeks, finally elect to kill and eat/drink youngest mate – Ds argue necessity defense at murder trial
Courts unable to find any statute or reliable precedent, so look to two moral theories:
Fairness: blameworthy people deserve punishment, but seamen were starving here
Societal/policy considerations: with no rule against, may be killings too early
H: no necessity defense here, murder conviction upheld
Two moral theories of punishment:
Fairness = retributive theory
Societal/policy considerations = utilitarian theory
Utilitarian Justifications for Punishment — (rehab, deter, incapacitate)
An act is justified if its good consequences outweigh its bad consequences
Punishment is justified if good consequences outweigh bad consequences
We measure good/bad consequences as “levels of utility”
Bentham: we want the greatest happiness of the greatest number
So punishment is justified if it leads to greater overall happiness
Net balance of punishment:
Costs: money (prison, police investigations, courts); costs to the D (liberty deprived, can’t enjoy life); costs to intimates (family, dependents, etc.); cost to society (labor)
Benefits: deterrence; incapacitation; rehabilitation – public safety ultimate goal
When do the costs and benefits match? When are they at odds?
Retributive Justifications for Punishment — (levels of culpability)
Alex Cabarga Case: convicted of horrible child sex crimes along with Tree Frog Johnson, Cabarga initially sentenced to 200 years (TF received 500) – sentence significantly reduced after massive public outcry – AC had been abused/brainwashed for ten years
Brought up questions of free will and guilt; though not insane, unclear that AC was fully aware of crimes and impact – serious retributive questions
Retributive theory makes some presumptions about free will and agency
How do we measure culpability? – may actually want to check this

Background of Sentencing
Note: standard at sentencing phase isn’t BARD but propensity of the evidence – judges can find new facts (at this lower standard) and adjust sentence unilaterally
Allowed massive judicial discretion and power – indeterminate sentencing
Many issues with indeterminate sentencing – esp. the massive disparities in punishment / unpredictability of sentences: some overly harsh, some really

ded by jury proven BARD
Process for 6th Am / Apprendi Analysis
What is charge of conviction?
What is the statutory maximum? – Using Blakely definition
Does the sentencing factor at issue push penalty beyond the stat max?
If yes, must go to jury or it’s unconstitutional (note: prior conviction evidence ok)
In response, states either “constitutionalized” their statutes by submitting enhancements to the jury, or simply told judges not to go above the underlying SM
Blakely v. Washington: man violently kidnaps wife who wanted divorce – arrested and charged with kidnapping
WA had created a binding guideline system to limit judges’ discretion
Crime here carried 10y statutory maximum, but state guidelines proscribed max at 4.5
Judge finds aggravating factors (DV, gun) during sentencing and sets sentence at 7.5y
D appeals arguing it violated “SM” contained in guidelines .˙. violated 6th Am under Apprendi, WA argued that the statute clearly listed 10y as the max!
SCOTUS: SM is a term of art, doesn’t matter what you write in the statute, the maximum range in the guidelines clearly counts as a SM so 7y conviction is an Apprendi violation of the 6th Am
Effect of Blakely was to make entire sentencing guideline concept unconstitutional – anything enhancing penalty beyond guideline max (“SM”) must go to jury!
Booker v. US: D charge and found guilty on drug offense, guideline range including priors was 210-262mo but court instead assigns 360mo because during sentencing judge found by POE and relevant conduct rules that D actually sold far more drugs (note that judge was perfectly following the relevant conduct rules in the guidelines)
D appeals arguing Apprendi / 6th Am violation
SCOTUS does Apprendi analysis: jury verdict was that D sold 50g and so SM under guidelines (via Blakely def) is 262mo and anything above that SM is a criminal element that must go to jury to be found BARD
Effect: relevant conduct rule is unconstitutional and therefore, as it’s so central to the federal guidelines system, the whole scheme is unconstitutional (so are states’)
SC’s solution: guidelines are no longer binding; courts are free to ignore them
If anything adding time above SM violates Apprendi/Blakely, no more SMs at all!
Essentially a return to indeterminate sentencing
Dissent wanted every sentencing factor to be criminal element – impractical
Weirdly, the 6th Am RTJT interpreted to effectively give judges huge discretion
However, judges are generally still adhering to the guidelines
Allegne v. US: court extends Apprendi limit to mandatory minimums as well – ruling in this case that judge’s finding at sentencing by POE that D sold 5g more of LSD, pushing mandatory minimum from 5y to 10y was unconstitutional – must also go to jury
Do same Apprendi analysis for mandatory minimums, just use MM as stat minimum, anything that increases sentence must go to jury
Note that courts have found other constitutional limits on punishment; court found that implied right to privacy in Constitution precluded some state anti-sodomy laws (anti-gay)
Civil and Criminal Conflict/Overlap