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Criminal Law
University of Georgia School of Law
Dennis, Andrea L.

Criminal Law
Professor: Andrea Dennis
Fall 2013
A crime is a public law matter.
Criminal Law v. Civil Law
Overlap between the two
1.      Both impose obligations on conduct
2.      Both apply to whole community
3.      Both try to uphold certain societal goals
4.      Both involve procedural protection
a.       More in criminal than civil (right to counsel for example)
5.      Both can be brought by the government
6.      Both involve punishments
Big Distinctions
·         Moral condemnation for violation of criminal law
o   Criminal law serves as a guidepost for society
o   Something that is a crime is something that deserves stigma/blame when committed
o   “Expressive Function” of criminal law – guilty verdict is an expression of the societal stigma/moral condemnation
Why does the distinction between criminal and civil matter?
1.      We attach different punishments to crimes
2.      Society makes choices about what to condemn as a crime and what to enforce
3.      The stigma of a criminal act serves as a guidepost and helps deter a lot of people
Sources of Criminal Law
Changing over time – Criminal law is not fixed
·         New crimes are created, old crimes are sometimes revised
The law evolving
·         English Common Law>>> American Common Law>>> American Statutes>>> Model Penal Code>>> Modern Statutes and New Common Law
·         Federal and State Constitutional Law as well as policy considerations constrain the law
·         Federalism
a.       Authority delegated between State and Federal governments
1.States can enact own criminal statutes, constrained by constitution
2.State legislatures have primary responsibility for certain areas, including criminal justice
3.Federal governments authority on criminal law is limited
a.       National Security
b.      Federal Income Tax Law
4.There are some contested areas between state and federal law
a.       Immigration
b.      Drug crimes
·         Separation of Powers
a.       Clear separation of the branches of government
1.Legislative – creates statutes
2.Executive – enforces statutes
3.Judicial – Interprets statutes
·         Constitutional Limitations
a.       No ex post facto laws
1.No retroactive application of laws
2.No extending the reach of a law retroactively
3.No lessening the evidence needed to prove a crime retroactively
b.       No cruel and unusual punishment
1.No torture, no physical pain, no disproportionate punishment, no punishments extremely out of sync with crime committed
c.        Due process
1.Procedural and substantive protections for defendant
·         Limitation of the courts
a.      Legality Principle
1.No judicial crime creation
2.No ex post facto laws
b.      Void for Vagueness Doctrine
1.Legislature can’t delegate authority to the court to create crimes by writing a vague statute
2.Reasonable, law abiding citizens must be able to understand the meaning of the statute
3.Statute must be clear and specific enough to constrain prosecutors
c.       Rule of Lenity
1.Construe ambiguous criminal statutes in favor of the defendant
Criminal Statutes
Legality Principle
·         No judicial crime creation
·         No ex post facto laws
·         Case Example: Keeler v. Superior Court
1.      A man was charged with murder when he attacked his pregnant wife, resulting in the child being stillborn. The CA murder statute criminalized the “killing of a human being,” so the question was whether a fetus was a human being under the meaning of the statute. The court found that it was not because the statute did not define it, and legislative intent indicated that a fetus was not supposed to be included. Therefore, the court found that criminalizing the killing of the fetus would have been expanding the statute and engaging in judicial crime creation, which is unacceptable under the Legality Principle. This would be an unforeseeable enlargement of the statute, thus there would not be fair notice to the defendant.
Statutory Clarity/ Void for Vagueness
·         A statute is unconstitutionally vague when it fails to give notice of the required conduct to one who would avoid its penalties or to give a clear standard for guilt
1.      A person would not have notice when men of common intelligence might differ in interpreting the meaning of the statute
2.      Case Example: In Re Banks
                                                  i.      Here, the court found that the “Peeping Tom” statute was not vague or overbroad because the two words at issue, “peep” and “secretly” had clear meanings as defined by the court so that reasonable men would agree on the meaning of the statute
Statutory Clarity/ Ov

who “uses or carries a firearm” during or related to a drug trafficking crime, was to be interpreted broadly.  They found that it could have been interpreted broadly to include carrying on the person as well as in a vehicle or narrowly to mean just on the person.  After looking to dictionaries, the bible, literature, news, and statements from the chief legislative sponsor that the statute was intended to have those committing a felony leave their guns at home, the court settled on the broad meaning. The court rejected the application of the Rule of Lenity because there has to be a grievous ambiguity or uncertainty, which doesn’t exist here.
Criminal Procedure
Presumption of Innocence
·         Fundamental principle that a person may not be convicted absent proof by the state of guilt beyond a reasonable doubt
Burden of Proof
1.      State must prove all elements of a crime beyond a reasonable doubt
2.      State must meet burden in its case in chief (enough to survive motion for a directed verdict)
·         But prosecution does get rebuttal evidence
3.      Constitution doesn’t talk about Beyond Reasonable doubt standard
·         Comes from Winship Case
4.      Beyond a reasonable doubt not quantifiable
·         It is subjective state of near certitude of guilt
5.      A conviction based on circumstantial evidence alone is acceptable as long as the burden of proof is met
·         On appellate review, a conviction based solely on circumstantial evidence cannot be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence (Owens v, State)
Burden of Proof v. Burden of Persuasion
·         Proof – the party with the burden of proof has the burden of first introducing the evidence to allow a claim or a defense to go forward
·         Persuasion – After the burden of proof is met – burden to persuade the jury to believe your evidence