Criminal Law – Fall 2012 (Watson)
ELEMENTS OF THE CRIMINAL OFFENSE (All must be proven BARD)
Actus Reus (the criminal act) — ALL CRIMES
Present in all crimes. prosecution must prove that D committed this act and this act is criminal. No actus reus = proctor problem
2. Two distinct requirements:
i. general requirement of an actual act or omission
ii. Particular actus reus prosecution must prove beyond a reasonable doubt
3. Other requirements:
i. Actual Harm
4. Specific types of ARs
1. Status Crimes
Mens Rea (the guilty mind) MOST CRIMES
Most crimes require the requisite intent (those that don’t = strict liability)
Different degrees of MR – usually are specified in the statute itself.
Surrounding Circumstances FEW CRIMES (ex. homicide, possession)
Result FEW CRIMES – (e.g. homicide)
5. Causation (only in result crimes)
i. Must determine that one step leads to another; that D actually committed offense.
Focus: substantive criminal law (not procedural)
2 General Categories of Crime –
Misdemeanor – less serious offense. Punishable by community service, probation, fines, or incarceration of usually less than 1 year in local jail.
Felony – imprisonment in sate or federal penitentiary, usually 1 year +
Sources of substantive criminal law:
1. Model Penal Code – what ALI drafters thought ideal criminal code should look like. No state has adopted it in its entirety.
2. Hard Law — Constitution and statutes enacted by congress or state legislature
a. does not change often.
b. Provides notice, as everyone knows how to find it.
i. Notice necessary to comport w/ due process.
ii. By providing notice, you can provide deterrence.
3. Case law/common law (“soft law)
a. judicial decisions — stare decisis binds decisions to precedent
b. Focus of appeal in crim cases is not on guilt, on errors during trial
b. Crime v. Tort
i. Crime = harm against society; public social harm that society/state or federal gov’t has chosen to punish w/ stigmatizing punishment — we have laws that protect the individual and society, direct and indirect.
1. Criminal π = prosecution, state or fed
2. Stigmatizing punishment – punishment administered by state or fed gov’t
a. criminal stigma of conviction (expression of society’s outrage over defendant’s behavior) is the most distinguishing factor.
3. 5th amend:
a. Δ has right not to testify
b. Double jeopardy: cannot be tried twice for same crime
4. 6th amend for felonies: right to trial by jury, counsel, speedy trial
a. Δ can waive jury for bench trial
5. Burden of proof on prosecution to convince judge/jury that case has merit
a. Beyond a reasonable doubt
b. Jury verdict must be unanimous
ii. Tort = civil wrong, not criminal wrong.
1. Civil π
2. “Remedies” rather than punishment – lacks stigma of criminal punishment
3. No 5th amend rights — Δ must testify
4. No 6th amend rights to trial apply in civil
5. Burden of proof = preponderance of the evidence
iii. Often have civil case after criminal case
1. Conduct can be the same or different
a. Same conduct ex: homicide (general law – can be broken down into murder, manslaughter, etc.)
i. Crime: homicide
ii. Tort: (wrongful death compensation for value of life)
2. Reasonings for civil trial in addition to criminal:
a. Δ has assets or future assets,
i. usually waste of time if defendant has no assets
b. To prove guilt if Δ is acquitted
c. If an appeal of criminal case is planned
3. Crime/harm can be charged twice in criminal and civil (not double jeopardy)
a. Burden of proof is different – civil = preponderance of evidence
4. Just because you’re acquitted in criminal case doesn’t mean you’re innocent, just means you’re not guilty.
c. Criminal Procedure
i. Procedure before a trial
1. Investigative End:
b. Booking – informally charged, fingerprinted, photographed.
2. Prosecutorial End – need to be promptly charged or released.
a. Misdemeanor – charged by information – decree issued after preliminary hearing heard by judge or magistrate. Based on affidavit (sworn statement) of prosecutor.
b. Felony – formal charge called indictment by a Grand Jury.
i. D has very few rights here. No right to be represented by counsel. If there is enough information to go to trial – judge issues a True Bill, or indictment. Must charge every element of the offense.
ii. True Bill – verdict of the grand jury. when grand jury decides that there is probable cause to believe that crime was committed, and that this person committed it. “Green light” to go to trial.
1. Indictment – is the official charge returned by the judge. Based on the True Bill.
2. 90-95% of GJ proceedings result in True Bill.
iii. Burden of Proof – probable cause.
iv. Once D brings up an affirmative defense, the burden shifts to the prosecution to disprove them beyond a reasonable doubt.
v. Arraignment – D appears and enters plea of guilty or not guilty.
1. Plea Bargain – agree to plead guilty to lesser offense in return for prosecution agreeing to lighter sentence.
2. At arraignment:
a. If pleads guilty – date for sentencing set
b. If pleads not guilty – date set for trial
c. In between formal charge and when trial begins, D may enter a demurrer, or “motion to quash” asking court to throw out information or indictment because there is something wrong with it. 3 ways:
i. Indictment or information is defective because it fails to state all element of offense.
ii. If the crime charged is not really a violation of criminal law in this jurisdiction
iii. Insufficient evidence to charge a D.
d. If judge accepts demurrer and dismisses charge, double jeopardy does not apply. Prosecution does have the right to appeal here.
ii. PROCEDURE AT TRIAL
1. Jury may be empaneled:
a. Petit Jury – 12 people whose verdict must be unanimous
b. Grand Jury – 16-23 people in Ga and Federal Systems. In other states, between 12 and 23
c. Misdemeanor Case – jury of 6.
2. Pretrial Motions – conference between
curing criminal sickness. Criminals Need therapeutic treatment.
i. Difficult to prove success
c. Cost-Benefit Analysis for Criminals – Deterrence
1. Cost – difficulty of committing, chance of getting caught and punished, and severity of punishment.
a. Some say that criminal mind is not rational and they will not respond to changes in the cost of committing:
b. Swiftness and certainty increases effect, but severity does not.
i. In US à severe, but slow and uncertain punishment.
2. Benefits – fruits of the crime.
ii. Opportunity Cost: can be uniquie to each criminal.
1. High opportunity cost: cost > benefit
2. Low opportunity cost: benefit > cost
iii. Problems –
1. Doesn’t address impulsive, irrational, abnormal responders, like the insane. If you punish them you won’t achieve much in the way of specific deterrence
2. Doesn’t address the issue of the low chance of punishment – even if we catch them, they are not likely to be punished.
B. Modern Sentencing Guidelines
Sentencing Period: If D convicted, sentencing period begins.
Sentencing often depends on the judge:
his views on the theories of punishment
dominant theories of punishment at the time
Mitigating factors may be considered
Judge almost always assigns sentencing
Rare exceptions require jury sentencing
a. Always required for death sentence
b. Very few other exceptions – a couple of states have “jury recommendation” requirements
i. Determinate v. indeterminate sentencing
1. Determinate = fixed length at sentencing.
a. May have possibility of reduction in term of years.
i. “Flat sentence” No possibility of reduction
b. “Suspended sentence”: length of sentence is the same, but judge assigns probation instead of prison. If offender fails to meet suspended sentence requirements, he will finish sentence in jail.
c. Supports general deterrence,
2. Indeterminate = possibility of parole
a. Judge determines “outer limits” of sentence
b. Supports rehabilitation
c. Juvy = usually indeterminate sentencing
ii. Discretionary v. nondiscretionary – Can be determinate or indeterminate
1. Discretionary – allows judge to pick sentence from statutory range
a. Discretionary systems
i. Unguided/unstructured: judge chooses sentence w/in range in statute
ii. Guided/structured: legislature or sentencing commission provides guidelines for sentencing decisions
1. Presumptive guidelines – bind judge to specific sentence range unless strong reasons to deviate
2. Voluntary guidelines – simply urges judges