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

Criminal Law- Watson- Fall 2013
I.                   Introduction
* Crime: social harm that society punishes with a stigmatizing punishment.  A violation of a criminal law, a harm against society.
A.     Elements of Criminal Law
1.      Actus Reus:  the criminal act – all crimes require it.
2.      Mens Rea:  guilty intent or guilty mind – most crimes require it.
a.       Purpose
b.      Knowledge
c.       Recklessness
d.      Negligence
3.      Causation:  link between defendant and crime – issue in some but not all crimes, only some crimes require it.
a.       But-for
b.      Proximate cause
4.      Result:  (i.e. homicide requires dead body) – a few crimes require it.
B.     Differences between criminal and tort law.
1.      Burden of proof is beyond a reasonable doubt. In tort – preponderance/clear and convincing.
a.       Acquitted doesn’t necessarily mean innocent, just that the government didn’t meet its burden of proof.
2.      Criminal law is public and tort is private.
3.      In criminal cases, the government is bringing the action on behalf of society. 
4.      Punishment:
a.       Criminal: stigmatizing, can make D lose rights
b.      Torts: usually just remedies although sometimes punitive.
5.      Crimes are defined by statutes.
C.     Sources of Criminal Law: Constitution-Statute-Case Law
1.      Statute and Constitutions=hard law.
1.      Crim. Law tends to be statutory because it keeps consistency, it provides notice to the public of what conduct society considers criminal, and provides notice of what is likely to happen to you if you violate criminal law (punishment/deterrence)
a.       Fairness – that the criminal justice system have to be perceived as fair in order to work properly (4th, 5th, 6th amendments)
b.      Notice also distinguishes between major and minor crimes and the degrees of the sanctions (felonies, misdemeanors)
c.       Apportions punishment according to the seriousness of the event
2.      Precedent/case law/common law= soft law
a.       State Decisis:  courts are bound by legal precedent.
D.     Model Penal Code
1.      Drafted by American Law Institute in 1962.  What drafters thought ideal criminal code should look like.  No state has adopted it in its entirety. 
II.                The Career of a Criminal Case (1-4)
A.     Procedure before trial
1.      Different stages for misdemeanors or felonies.
2.      Arrest-booked-DA notified-formally charged by prosecutor.
a.       Misdemeanor: affidavit (sworn statement) – judge decides if there is enough evidence – issue information (formal charge).
3.      Diversion arrangements: when a prosecutor drops charges if D goes into a program.
4.      Grand Jury gets the “whole show.” D. has no right to attorney. P only needs to prove probable cause.  – “True bill” to indictment. 90-95% result in true bill.
5.      Arraignment- formally charged and enters into plea.
6.      Discovery (Brady doctrine- requires prosecutor to turn over exculpatory evidence).
7.      Pre-trial motions and plea bargaining.
a.       10-30% of arraigned cases are dismissed and 70-90% of the remainder enter into plea bargaining.
B.     Legal Issues before Trial
1.      In between formal charge and when trial begins, defendant may enter a demurrer, or “motion to quash” asking court to throw out information or indictment because there is something wrong with it:
a.       Fails to state an element of offense.
b.      Crime charged really isn’t a crime.
c.       Insufficient evidence. 
2.      If judge accepts demurrer and dismisses charge, double jeopardy doesn’t apply.  Prosecution has right to appeal here.
3.      Plea Bargain – agree to plead guilty to lesser offense in return for prosecution agreeing to lighter sentence. 
C.     Trial Procedure
1.      If sentence could be longer than 6 months – right to jury. Jury impaneled (voir dire). 
a.       Petit jury: 12 people whose verdict must be unanimous
b.      Grand jury: 16-23 people in Ga. and Federal Systems.  Other states- 12- 23. 
c.       Misdemeanor case: 6
2.      Pretrial motions:  conference between judge and attorneys.  Can attack validity of information or indictment, but usually attack the sufficiency of evidence.
a.       Determines what evidence can be used; can determine the outcome of the case.
b.      Can also be made for:  suppression of improperly obtained evidence; change of venue; compelling discovery; determine competence to stand trial; and court appointments of expert witnesses.
3.      Opening statement-rebuttal (optional)-Gov’s case in chief-move for directed verdict- D’s case in chief – final motions (renewal for directed verdict) – closing arguments- jury instructions-jury decides verdict – judge sentences. – Judge can override verdict with (JNOV).
a.       Post-trial conference- discusses jury instructions. If government disagrees with them they can appeal (interlocutory).
b.      Prosecution can appeal instructions – can ask for continuance. 
4.      Must have 12 unanimous to convict of a felony. 
a.       If convicted, can appeal based on: admission of improper evidence; improper exclusion of evidence; ineffective assistance of counsel.
5.      Bifurcated trials:  initial trial for guilt or innocence, and if guilty then a new mini trial to determine sentencing.  Modern rule:  jury has to be there because it can affect the sentence in a significant way. 
III.             Burdens of Proof and Due Process (16)
A.     Burden of Production
1.      Introduce some prima facie evidence to compel fact finder to consider a claim.
B.     Burden of Persuasion
1.      Persuade fact finder that evidence warrants accepting/rejecting the claim. – Reasonable doubt to preponderance of evidence.
I.                   Introductory Problem (29)  
A.     Jones: killed his abusive father and then turned himself in. No heat of passion/provocation/SD
1.      Prosecution will focus on: sanity, wasn’t immediate danger, did he try alternatives?
2.      Defense: abuse, no priors, turned himself in, killed father because he loved his mother.
3.      Retributive view: should be punished, committed great offense
4.      Utilitarian: too harsh – lead to people finding the system unfair àJones is a one-time offender so not much gained by incarcerating him, it’s expensive, minimal deterrence, he doesn’t need rehabilitation
B.     Green: Stole jewelry & TV from a house. Had a tough childhood, etc.
1.      Retributive view: should have a smaller punishment for the small crime.
2.      Utilitarian: repeat offender (recidivism) – specific deterrence if he’s in jail longer.
II.                Introduction Information
A.     Punishment is inflicted suffering for a violation of a law 
1.      Influences legislation in defining an offense; judges in sentencing; public’s opinion of fairness; and lawyers in representing clients and arguments.
III.             Theories of Punishment (34-71)
A.     Utilitarianism
1.      Based on Jeremy Bentham’s writings.
2.      Thinks crimes are a result of society.
3.      Deterrence (general and specific) and rehabilitation are the underlying elements.
4.      An offender should only be punished if there'

v. Washington
1.      He was mentally ill and his wife left him.  He kidnapped her.
2.      He pled down to 2nd degree kidnapping – the statutory max was 10 years, but the state guidelines say he will only get 4.5 years. 
3.      The state scheme allowed the judge to examine other elements like deliberate cruelty- he never admitted to & jury never found beyond a reasonable doubt.
a.       Found deliberate cruelty and imposed a 90 month sentence. 
4.      S. Ct. decided a maximum sentence is one based solely on the facts in the 1st case.
a.       This violated Apprendi because he never admitted to deliberate cruelty. 
b.      Apprendi states that the judge may only impose the max sentence based on the facts found by the jury and those admitted by D
E.      U.S. v. Booker
1.      Only had 50 grams of cocaine, but normally had more and would get a 10 year sentence, but judge found enhancers to increase conviction.
a.       Appeal – 6th amendment right to jury was violated.
b.      Shouldn’t have used enhancers except prior convictions, because those are public record.
c.       Guidelines struck down as mandatory = now they are merely advisory, but a judge must still consider them. But can apply sentence outside the guidelines
d.      Sentences are subject to review by appellate courts under whether the judge abused use of discretion in sentencing
F.      US v. Rita
1.      If sentence is appealed, a sentence within federal guideline is presumptively reasonable; one that departs is not presumptively unreasonable.
a.       Judges have discretion within Apprendi, Blakely, and Booker
b.      Factors to consider by the judge: the seriousness of the offence, the deterrence factor, the benefit to the Δ (rehabilitation, medical care, corrective treatment, vocational training), and the need to make restitution to the victim. So there is some leeway to deviate from the sentencing guidelines, but the judge has to make a compelling case for these
·         ** Any fact which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty, the facts must be admitted by D or given to jury beyond a reasonable doubt. **
VI.             Modern Guidelines Sentencing
A.     Introduction
1.      Determinate (fixed length) v. Indeterminate (possibility of parole decided later).
2.      Flat sentence:  determinate with no possible reduction
3.      Discretionary: judge picks
4.      Flat mandatory: if convicted, a judge must sentence them to the specified term.
5.      Mandatory minimum – have to at least sentence the smallest amount.
6.      Jury sentencing – generally only in capital punishment cases.
7.      Suspended Sentence – choose a period of years, then suspend prison term subject to certain conditions (period of probation). 
8.      **Sentencing often depends on the judge, and what his views on the theories are. **