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Criminal Law
University of Georgia School of Law
Watson, Camilla E.

Criminal Law

Professor Watson

Fall 2011


I. Crime: a legal injury to another person

a. A legal injury to another person or the state or a harm against society

II. Crimes v. Torts: emphasis on punishment rather than monetary damages; three main differences

a. (1st) Burden of Proof

i. Criminal Cases – beyond a reasonable doubt

1. Burden of Proof: Beyond a reasonable doubt

a. Higher b/c of the of the higher stakes

2. Burden of Persuasion is on the GOVT

ii. Civil Cases – preponderance of evidence (clear and convincing evidence)

b. (2nd) Public vs. Private Law

i. Criminal Law: suits brought on behalf of society by the GOVT

a. 2 bodies of criminal law (state and federal)

ii. Civil Law: suits brought on behalf of individual by an individual

c. (3rd) Stigmatizing punishment

i. Civil law’s punishment (remedies) are monetary in nature

1. not overly stigmatizing

ii. Criminal Law has punishment with stigma (will always be a felon)

d. Other distinctions

i. In a criminal case, the defendant has a right not to testify

ii. In a felony case, 6th amendment gives defendant right to a trial by jury

iii. In a criminal case, there exists a right to counsel & a speedy trial

III. Sources of Criminal Law

a. State and Federal Constitutions, most important

i. Ex Post Facto Clause: bars legislatures from punishing acts that occurred before the legislative proscription was passed

ii. Bill of Attainder Clause: bars criminal statutes from singling out particular individuals for punishment

iii. Due Process Clause

1. 5th Amendment: Places a burden of proof beyond a reasonable doubt on federal prosecutors

2. 14th Amendment: Applies 5th Amendment provision to the states

iv. 8th Amendment: bars ‘Cruel and Unusual Punishment.’

1. Punishment must be for conduct rather than characteristics, conditions, statutes, propensities, desires, or thoughts.

2. Punishment cannot be excessive for the crime.

v. Equal Protection Clause (14th Amendment): Bars discriminatory legislation by the states (Due Process Clause bars this from the federal government)

vi. Free Speech & Free Exercise Clause (1st Amendment): Bar criminal statutes and some decisions to prosecute under otherwise constitutional statutes

vii. 4th & 5th Amendments: Establish procedural rights against unreasonable searches and seizures, double jeopardy, and self-incrimination

viii. 6th Amendment: Right to trial by jury and to confront witnesses

b. State and Federal Statutes

i. Legislative origin

ii. Model Penal Code: Created by the American Law Institute in 1962, the code is a comprehensive reformulation of the principles of criminal liability drawn from previous codes, decisional law, and scholarly commentary.

1. It has been adopted in part in 35 states

2. Preeminent source of substantive criminal law in the U.S.

c. Case Law

i. Judges engage in legal reasoning when they interpret an ambiguous statutory or constitutional provision

ii. Stare Decisis (Let Precedent Stand): Judge must consider any previously decided cases and then think about how this ruling will effect any other undecided cases yet to come

1. Judges consider what precedent the case will establish for the future

IV. Terminology

a. Writ of Habeas Corpus: writ stating to an appellate court that an individual has been wrongly imprisoned and should be released from jail

b. Rule of Lenity: When a legislature drafts an ambiguous statute and the courts interpret the statute in favor of the defendant (tie is broken in favor of the defendant)

V. Criminal Liability

a. The Scope of legality: must have preexisting legislative definition of the crime

b. Burden of Proof:

i. Constitutional question: how heavy a burden of proof can legally be placed on the defense

ii. Legislative question: how heavy a burden legislators should place on the defense

iii. Interpretive question: what allocation of the burden of proof judges should assume when the legislature is silent

iv. Common law question: how to allocate the burden of proof when judges recognize defenses not provided by the statute

c. Statutory Interpretation: ‘Fills in the blanks’ when statutes leave something unsaid; these general schemes can be stated explicitly in what is sometimes called “the general part” of a criminal code

d. Types of Analytic Schemes

i. Model Penal Code:

1. Elements of offense

a. Objective requirements (actus reus elements) – act

i. All crimes

b. Culpability requirements (means rea elements)

i. Purpose/Intent, knowledge, recklessness, negligence, or lack of culpability

ii. Most crimes

2. Every objective element must have a corresponding culpability element

ii. German Scheme: Liability divided into 3 issues

1. The definition of the offense: Object and subjective elements that constitute the incriminating case against the accused

a. Objective elements: acts

b. Subjective elements: actor’s mental state

2. Wrongdoing & Justification: Violation of a prohibitory norm does not entail liability unless it is wrongful

a. Justifications (actor has good reason for violating a norm): lesser evils, self-defense, acting in the name of the law

3. Responsibility & Excuse: Claims of excuse negate elements of responsibility (it is unfair to hold a suspect accountable for his wrongful act if his behavior is excused)

a. Excuses (carves out a limited field where the conduct is not wrongful): insanity, duress, mistake

b. Excused conduct still wrongful, but suspect cannot be held liable for violation of the norm

VI. Punishment

a. Factors when determining punishment:

1. Severity of the Offense

2. Danger to Society

3. Likelihood of Recurrence

b. Theories of Punishment:

i. Retributivism: Focus on justice, punishment (Kant)

1. Underlying Principles: atonement and proportionality

2. Backward Looking: Requires atonement for past crimes, no element of deterrence

3. Proportionality: punishment must fit the crime and the wrongdoer should be punished in proportion to the crime (eye for an eye)

a. Proportionality Considerations:

i. Seriousness of the offense

1. Sentences should be higher for more serious offenses

ii. Context of the act

iii. Deficient mental capacity

iv. If D is a minor

v. Court considers prior acts of the offender

1. Recidivist: Person who is inclined to commit more serious offenses

4. Blameworthiness: Focuses only on the crime itself

a. Supposes that individual had choice to commit crime

5. Characteristics:

a. Limiting Principle: There must be no undeserved punishment

b. Affirmative justification for punishment: Desert justifies punishment

6. Criticisms:

a. Some believe retributivism intentionally inflicts pain that will not result in future benefit, glorifies anger, legitimizes hatred, and is irrational because it is founded on emotions and not reason

ii. Utilitarianism: Focus on future crime prevention (Bentham)

1. Foreward Looking: Asks what society can accomplish through punishment. Punishment is justifiable only as far as it maintains social order

a. Assumes purpose of the law is the establish the greatest amount of happiness and the least amount of paid (highest net happiness) on society

b. Wrongdoers should be punished only if a greater good may be accomplished from the punishment

c. Assumes that crime is caused by social circumstances

d. Punishment does not express blame for the offender, rather its sole purpose is to prevent crime by deterring, reforming, and incapacitating offenders

2. Underlying Principles

a. Deterrence

i. General Deterrence: Punishment sends message to public to deter them from committing a crime (means of reducing crime rate)

ii. Specific Deterrence: Punishment deters the offender from committing another crime

1. Incapacitation: seeks to incarcerate the offender, rendering him physically unable to commit further offenses

2. Intimidation: Looks ahead to when offender is released from prison, so he will have negative memory of prison (cost/benefit analysis)

iii. Criticisms: Deterrence works based on the assumption that offenders will conduct their own cost-benefit analysis prior to committing a crime. Assumes that adjusting punishment upward will result in a lower crime rate. This fails to consider:

1. Criminals are risk preferrers

2. Data: Crime rate only drops when punishment is more swift or certain

iv. Jeremy Bentham, The Theory of Legislation

1. First Rule: The evil of the punishment must be made to exceed the advantage of the offence

a. To prevent an offence, it is necessary that the repressive motive should be stronger than the seductive motive

2. Second Rule: The more deficient in certainty a punishment is, the severer it should be

3. Third Rule: Where two offenses are in conjunction, the greater offense may have a motive to stop the lesser

4. Fourth Rule: The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it

a. Punishment should be susceptible of more or less, or divisible, in order to conform itself to variations in the gravity of offences

v. James Q. Wilson, Thinking About Crime:

1. Debate over the effect on crime rates of changing the costs and benefits of crime is usually referred to as a debate over deterrence

2. Deterrence is the theory that people respond to penalties associated with crime

3. Reason there is a debate among scholars about deterrence is that socially imposed consequences of committing a crime are characterized by delay, uncertainty, and ignorance

vi. Other ponderings on deterrence

1. That increases in police reduces crime accords with conventional deterrence theory

2. Certainty of punishment plays a greater role in deterring crime than severity of punishment

b. Rehabilitation: Ability to turn convicted criminal into a normal member of society (to make them unlikely to engage in a similar offense)

1. Has been shown to work poorly because of high rates of recidivism

2. Theory has suffered from a lack of political support

3. Penitentiaries-originally designated as rehabilitation facilities, eventually prisons ran out of room to run effective rehabilitation programs

4. Problems:

a. How do you determine when somebody is rehabilitated?

b. Some may be incarcerated longer than they otherwise would be based on their crimes (to ensure rehabilitation)

5. Criticisms: If community has failed, it is unclear how prisons would succeed

a. Demeans offenders by treating them as sick or childlike

6. Reasons supporting rehabilitation

a. Concept of universal citizenship: every person in a nation state is a citizen and needs to understand and fulfill the responsibilities which that entails

b. Every human being has natural rights of a political nature: Modern society sees every person as a rights-bearer, an equal member of society

c. Belief in personality development as a secular phenomenon: Punishment can be one of many experiences that shape the development of life

7. Criticisms

a. Rehabilitation can equal indeterminate periods of confinement

c. The Utilitarian Pri


1. Granted if judge feels that P has not presented a case for conviction

ii. P cannot appeal a DV (double jeopardy)

2. Defense presents case

a. Defendant does not have to testify

3. Final motions

a. Defense will renew its motion for a directed verdict

i. Possible that judge will feel DV appropriate after D presents case

1. If D has to present the case after motion of DV denied, the defense, by presenting that case, has waived its right to repeal the denial of the directed verdict

ii. In event of conviction, defense can ask for a JNOV

1. To have a JNOV, defense must have renewed its motion for a directed verdict after case was presented

4. Closing Arguments

a. Summary of the arguments/case for both sides

5. Post-trial motions

a. Jury Instructions: Jury will be given a list of instructions for deliberation

i. Tells elements of defense that jury must agree to for reasonable doubt about conviction

ii. Sources:

1. “Pattern” jury instructions, which are endorsed and published by appellate courts

2. Requested by defense or prosecution

3. Written by the judge based on his or her understanding of the relevant law

b. Interlocutory Appeal: P can appeal if P thinks judge made unfavorable decision.

i. Asks higher court to review a decision relating to some point of law.

1. not outcome determinative

ii. Appellate Courts are hesitant to grant interlocutory appeal

1. If appeals court recognizes a severe mistake, they can grant appeal

iii. Interlocutory Appeal can only be made by the prosecution

6. Deliberation:

a. Mistrial: jury cannot make a decision

b. Convicted: guilty verdict

c. Acquitted: not guilty verdict

d. defendant innocent, defendant is acquitted

7. After Conviction

a. Judge orders a probation report

b. Judge will conduct a sentencing hearing, hearing arguments from both sides and then choosing a sentence within the range prescribed by statute

8. D can appeal verdict:

a. Substantive Grounds:

i. The charge on which defendant was convicted was not a crime

ii. Indictment or information did not allege all necessary elements of the crime

iii. Evidence was insufficient to justify any reasonable fact finder in finding all the necessary elements of the crime proved beyond a reasonable doubt

iv. The jury was improperly instructed on the elements of the offense or on the criteria for a justification or an excuse defense

b. Procedural or Evidentiary Grounds

i. Evidence shows that defense was wrongly excluded as irrelevant, because the trial court wrongly disallowed the defense or defined it incorrectly

ii. Prosecution evidence was wrongly admitted as relevant, because the trial court misunderstood the elements of the offense or of the defenses offered

1. If appeals are granted, defendants win new trial subject to harmless error rule

9. If appellate court:

a. Agrees with the decision: uphold ruling

b. Believes some error was made: reverse and dismiss the case

c. Believes that a partial error was made: reverse and remand the case (new trial)

d. Find error, but states that it was not determinative to the case: uphold ruling

10. Prosecution Appeal

a. Rarely happens because of double jeopardy

b. Can appeal in event of jury tampering or unethical behavior from defense

vi. Bifurcated Trial: Capital cases where the guilt/innocence portion of trial is split from the sentencing determination

IX. Elements of the Criminal act

a. Actus Reas (Criminal Act): all crimes have a criminal act

i. Actus Reas is the thing the prosecution must prove beyond a reasonable doubt

b. Mens Rea (Guilty Mind): Most crimes also require a mental state

i. Strict liability offenses do not require a mental state

ii. Prosecution must prove the mental state required by a statute

iii. If court determines that a crime is not a strict liability offense, then it must determine what the necessary mental state is

1. Statute will usually specify what degree of mental state applies

c. Causation

i. Must prove that defendant’s act caused harm

1. Comes into play in extenuating circumstances

2. No differentiation between defendant’s act and harm itself

d. Result: Some offenses require a specific result

i. Ex. Homicide: need dead body or strong proof that homicide actually occurred (very high burden of proof)

e. Some offenses require a consideration of surrounding circumstances

i. Consideration of surrounding circumstances may define the offense (may elevate or reduce the offense)

1. Ex. If homicide occurs in the heat of passion, then crime is not premeditated murder