Introduction to Criminal Law
I. The Criminal Jury:
A. Right to a Jury
Duncan v. Louisiana (1968): 6th Amendment jury right for serious criminal offenses incorporated thr 14th Amendment’s due process clause into state criminal trials.
(Grand jury clause NOT incorporated)
Reasons for jury trial: Simple answer: Magna Carta à England à U.S.
a) Educational value (so many people will understand what the law is)
b) Pressure to keep the law simple – move toward plain language.
c) Jury nullification/ equity / “penalty makes sense in a given context” / individualizing justice (rule vs standard. Perhaps mollifying effect of a strict rule)
d) participatory value – jury as “the people” vs governmental actors; legitimacy b/c of transparency.
B. Jury Nullification:
Even when jury believes the facts mean the law is violated, it can still acquit. First example Wilburn (re: treason againt Cromwell)
j.n. only in criminal cases. In civil cases- a judge can direct a verdict (take a case away fr the jury) or it can render a judgment notwithstanding the verdict.
A prosecutor can NOT appeal a “not guilty” b/c it’d be double jeopardy (trying the defendant twice).
II. Goals of Sentencing
Retributionalism vs Consequentialism (a subset of utilitarianism) – sometimes the two are confused (for instance, arguments for punishment to prevent vigilantism fr outrage)
Michael Moore (in the readings) – pure retributionalism, moral duty to punish.
Mixed theory (eg, blameworthiness is necessary but not sufficient to punishment. So Retributionism becomes a constraint.)
Robinson & Darley, Utility of Desert (p 95)- consequentialist but need appearance of retributionism b/c most ppl think in terms of retribution, and effectiveness of law depends on its moral authority. “criminal law for norm-nurturing.” People believe in proportionality (punishment fits the crime).
Three consequentialist reasons: Deterrence, rehabilitation, and incapacitation.
The General Elements of Criminal Liability
Three principles limiting imposition of punishment: legality, culpability (AR + MR), and proportionality. Long history of recognition in common law precedents & state penal codes based upon them.
III. Legality
Nulla poena sine – no punishment without law.
A. The Need for a Statute:
Today, to be a crime, it must be in statute. However, certain terms undefined b/c they were originally crimes at common law. E.g. Duncan: “simple battery” – “a battery that…” “battery” undefined b/c been defined in case law.
Why no longer judicial crime creation?
Weaker reasons:. 1) “fair notice.” But statutes often do not give meaningful “fair notice” b/c not well publicized & hard to understand. Plus, social norms serve as “fair notice” (neither Mochan or Baker had to consult lawyers to know their behavior was wrong or likely prohibited)/ Ex post facto clause – only affects Congress. Pre-trial processes give lawyers notice.
2) separation of powers. The dissent in Mochan wrote that crime creation is legislative prerogative. But courts can make up tort, property and contract rules, and can still have legislative primacy and allow courts “residual lawmaking powers” (as in t,p,c).
3) Maybe legislature is just better at making criminal law? (superior fact finding ability?)
Probably best (alt not perfect) reason: To prevent arbitrary & discriminatory enforcement. If crimes are defined in advance and courts can’t create crimes, then police can’t do random arrests and just hope that courts can make it a crime. On the civil side, we don’t have these enforcement apparatus). Herbert Packer- if courts can create crime, then an arrest of someone who hasn’t committed a crime is a suggestion to the court to create a crime.
Fair notice and preventing arbitrary & discriminatory enforcement are also reasons for why we don’t want statutes to be vague.
B. Statutory Interpretation & Lenity
Two versions of rule o
l
legis history: court holds the 1850 legis meaning was common law understanding – used “common law” b/c murder was originally common law crime.
Common law understanding at the time was a human being was one born alive.
Two reasons why court declines to hold human includes fetus:
1) “Jurisdictional” – no common law crime creation mandate in CA by CA’s code. Only legis can create crimes.
<- as dissent would pt out, isn’t this just an interpretation? UNLESS the definition of human being really is just born persons.
2) “constitutional” – unfair to retroactively apply an expanded meaning of the section. – fair notice.
Policy grounds for justifying Keeler? (stronger arguments the court did NOT make- perhaps too politicized)
-courts WANT legislature to define things clearly
-holding fetuses as human beings would make all abortions murder (since abortion crime at the time): making abortion statute redundant and b/c trend was toward decreasing penalties.
Dissent- no significant distinction b/w a viable fetus and human being. To interpret “human being” to include a viable fetus would be reasonable. Dissent cites the “Fair import” … “effect justice” fr code specifically abrogates the common law canon of strict construction – rather, seek the best construction). “Fair notice” met since Keeler already knew he was committing a serious crime (assaulting his wife, abortion).
Rogers v. Tennessee 532 U.S. 451 (2001) – a retreat fr Bouie’s doctrine that due process includes the same ex post facto restrictions on courts as (explicitly applicable by the Const) to legislatures
