CRIMINAL LAW
EHRENREICH
FALL 2011
1. Intoduction
a. Sources of criminal law:
i. Criminal law is statutory and primarily state driven where each state is more or less either:
1. Common law: -judges play an active role in interpreting rules that create precedence
2. Model Penal Code (MPC): a product of the American Law Institute (ALI). This organization writes restatements of various subject matters which have been very influential with state legislature. However, ALI did not write restatements of criminal law they created a new criminal code. In MPC jurisdictions laws rely on the statutory language itself
b. Justifications for punishment
i. Deterrence: criminals must be punished in order to deter other individuals from committing the same crime
1. General deterrence–punishment inflicted to deter others from committing the defendant’s crime (set an example for the public)
2. Specific deterrence– punishment inflicted to deter that individual from repeating his criminal behavior
ii. Incapacitation: defendants are incarcerated or executed to prevent them from doing further harm to society.
iii. Rehabilitation: to punish so that they can be trained not to commit crimes.
iv. Retribution: punishment with the idea that they deserve to be punished because violated rules of society.
1. Eye-for-an-eye: what was done to one person should be done to the person who did that act ie: you harm someone then you should be harmed
2. Protective retribution–by punishing someone we are doing them a favor because if we do not than we are treating them like a child. If we do punish them we acknowledge their willful, moral humanity
3. Victim vindication–punishment to give the victim closure
c. Presumption of innocence& proof beyond a reasonable doubt
i. Presumption of Innocence: defendant starts out innocent
1. Prosecutor has a burden of proof–must supply evidence that suggest guilt
ii. Standard of proof–the level of certainty the fact-finder must reach before ruling for the party with the burden of proof. The prosecution’s standard of proof is “beyond a reasonable doubt” or “beyond a preponderance of the evidence”
1. The reasonable doubt standard is a key instrument in “reducing the risk of convictions resting on factual error.”
iii. The prosecution bears the burden of proof which can include:
1. Case-in-chief or prima facie: a defense strategy that simply creates a reasonable doubt about some element of the crime.
a. Burden of production: initial responsibility to produce evidence in support of a claim.
b. Standard of proof is: beyond a reasonable doubt
iv. The defense bears the burden of persuasion:
1. Affirmative defense: “admitting the basic crime, but arguing for acquittal based on extenuating circumstances. Ie: admit the defendant stole the fire extinguisher but it was in order to put out a fire and save 20 innocent people.
a. Here the defendant has the burden of persuasion in order to prove why the case should be acquitted.
b. Standard of proof is: “beyond a preponderance of the evidence”
v. Standard of review: judge asks himself, not whether the prosecution has proved its case beyond a reasonable doubt, but whether the prosecution has introduced sufficient evidence such that a rational jury could decide that the prosecution has proved its case beyond a reasonable doubt.
d. Statutory interpretation
i. Judges play an important role in interpretation. They seek to:
1. Respect the plain language
2. Find the intent of legislature or voters
3. Make sure the interpretation of a statute in one case does not contradict its interpretation in another case
ii. canons of construction a specific process of interpretation:
1. Look at the plain meaning of the statute (such as the definition of ambiguous words)
2. Look at legislative history (what congress intended)–Interpreted in such a way to avoid constitutional problems
3. Noscitur a sociis: the meaning of doubtful terms or phrases may be determined by reference to their relationship with other associated words or phrases
4. Ejusdem generis: “where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated.”–in this case the lists consists of larger items filled with pictures like books and magazines so “other things” does not so drastically change the preceding meaning to a small magazine clipping. Dauray
5. Rule of lenity (rule of strict construction): all doubts should favor in the side of the defense
a. Not followed by the Model Penal Code 1.02(3)–MPC direct interpreter to serve fairness and justice but not necessarily in favor of the defense
2. Constitutional Limitations on the Power to Punish
a. Due Process: No state shall deprive any person of life, liberty, or property, without due process of law (14th amendment)
i. Principle of legality: prohibits retroactive judicial crime creation (court cannot create a law for the situation and then apply it to people because it is retroactive)
1. rationales:
a. Limit Gov power
b. Protects separation of powers because legislature is the branch for creating laws
ii. The Vagueness Doctrine: a necessary corollary to principle of legality–if there is a law that is so vague to the extent that it is meaningless then there is essentially no law at all because it would force the Judge to create laws and violate the principle of legality
1. Test for vagueness doctrine on statutes: if a law abiding citizen cannot comprehend/ do not know about it
a. Tests for void for vagueness:
i. fair notice requirement: “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.”
1. Morales (Gang congregation ordinance did not give fair notice of what constituted prohibited conduct)
2. Papachristou (several people arrested for vagrancy but there was no fair notice of that conduct was prohibited)
ii. Broad net requirement: It encourages arbitrary and erratic arrests and convictions.
1. Kolender (ambiguous terms “credible and reliable” for ID and thus allowed police to determine this to their discretion– man walking around town was arrested)
b. Cruel and Unusual Punishment: 8th amendment
i. “evolving standards of decency” test: Used to determine if a punishment is cruel and unusual
1. The court examines the punishment’s use statistically, in precedence, and its deterrence and retribution qualities–
2. Primary question is: does the society on a whole approve of such a punishment in today’s world?
3. Kennedy –can a child rapist get the death sentence?
ii. Proportionality: Does the punishment fit the crime–is it really eye for an eye? Kennedy
1. Why the death sentence in this case is not deterrence:
a. Creates i
masters and servants) –not a mistress per Beardsley
2. the defendant enters into a contract which requires him either explicitly or implicitly to act in a particular way (a contractual duty to care for an elderly person) Pestinikas –old man was promised he would be taken care of by the Pestinikas family and they omitted to feed him
3. there is a statutory duty to act (such as the duty to pay federal taxes Cheek)
4. the defendants creates the risk of harm for the victim
5. the defendant, who otherwise would not have a duty to act, voluntarily assumes care of a person in need of help
ii. “No duty to rescue” rule : states often do not have a duty to rescue rule for the following reasons:
1. Slippery slope argument–what if you omit giving money to a homeless person money and they die of starvation later?
2. It would be difficult to know what your obligation was or was not in ambiguous situations
3. There is a different moral status when failing to act than when actually acting (argument against this would say that the outcome is the same ie. Walking by baby in mud and shooting the baby)
e. Possession: acquisition of something and the failure to divest of it (per MPC 2.01(4))
f. Status offenses: getting punished for who you are not for what you do–protected against by the 8th amendment “cruel and unusual punishment” clause. Two elements of this is fairness (a person being convicted for what they cannot control) and absence of conduct.
i. In Robinson court decides that because defendant was not caught doing a conduct and was instead convicted for his status as a drug addict that the statute illegalizing drug abuse was unconstitutional. They even state that addiction is like an illness and punishing that is cruel and unusual.
ii. In Powell, court rules that public drunkenness fulfills an actus reus and is not a status offense. (if it were a status offense one would be convicted for alcohol addiction)
iii. The statute that criminalizes unavoidable activities is unconstitutional because it discriminates against the status of homelessness– individuals who may or may not be on the streets by their own choices. Jones
1. The city cannot criminalize being homeless nor can it “criminalize acts that are an integral aspect of that status.”
g. Actus reus elements under the MPC : each conduct is combined with a required mens rea
i. Conduct: the acts or omissions required to commit an offense ie: “takes” “causes” the death of someone else
ii. Circumstance: the external facts that must exist in order for the crime to be committed. Ie: requires taking the “movable property of another.”
iii. Result: any consequences of the defendant’s conduct that are incorporate in the definition of the offense. Ie: “the death of another human being.”
