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

Criminal Law Outline


Fall 2014

Criminal Law

· Crime

o Public law matter

o Crime causes social harm

o Criminal- prosecutor v. defendant

· Criminal v. Civil law

o Similarities/overlaps

§ Both impose obligations on conduct

§ Both apply to the whole community

§ Both try to uphold certain societal goals

§ Both involve procedural protection

· But more in criminal than civil (right to counsel)

§ Both can be brought by the government

§ Both involve punishment

o Differences

§ Moral condemnation for violation of the criminal law

· Criminal law serves as a guidepost for society

· Crime deserves stigma, outcry, blame when committed

· Expressive function of criminal law- the guilty verdict is an expression of the societal stigma / moral condemnation

§ Punishments attached to criminal and civil crimes (jail time)

§ Burdens of proof

· Criminal- beyond a reasonable doubt of every fact necessary to constitute the crime charged

o Presumption of innocence

· Civil- preponderance of evidence (more likely than not)

· Sources of Criminal law

o Changing over time- criminal law is not fixed or static

§ New crimes are created and old crimes are being defined/revisited

o Started out as a patchwork and became more coherent

§ 1. English Common Law- judge made law

§ 2. American Common Law- judge made law- adopted English common law, but diverged some

· Law only created when cases are brought before courts

§ 3. American Statutes (1900’s)- Inconsistent, no coherent code

§ 4. Model Penal Code (1930’s – 1962)- Judges, lawyers, ALI

· Not law in and of itself, just influenced thinking

· Creation of MPC signifies big shift in crim law

§ 5. Modern Statutes and New Common Law

· Codified law that gives public more control

· Legislative law better than judge made law because it’s more representative of what people want and think is right

· Classification of crimes

o Felony- Typically an offense punishable by death or imprisonment in state prison

o Misdemeanor- Max punishment is monetary fine, incarceration in local jail, or both

· Limits on Criminal Law

o Federal and State Constitutional law as well as policy considerations constrain the law

o Federalism

§ Delegation of authority between states and federal government

§ States can enact their own criminal law constrained by the constitution

§ State legislatures have the primary responsibility for certain areas, including criminal justice

§ Federal government’s authority in criminal law is limited

· National security

· Federal income tax law

§ There are some contested areas between state and federal law

· Immigration

· Drug crimes

o Separation of Powers

§ Clear separation of the branches of government

§ None can infringe on the others’ authority

§ Legislative- creates the statutes by the majority will. Can overrule judicial by making new law

§ Executive- enforces the statutes

§ Judicial- interprets the statutes and acts as a check on the majority will of the legislative and executive branches

o Constitutional Limits

§ No ex post facto laws

· No retroactive application of laws

· No extending the reach of a law retroactively

· No lessening the evidence needed to prove a crime retroactively

§ No cruel/unusual punishment

· No torture, physical pain, disproportionate punishment, no punishments out of sync with the crime

§ Due Process

· Procedural and substantive protections for defendant

§ Rule against excessive bail

§ Right to Trial by Jury

· Prevent oppression by govt, prevents unfounded criminal charges

· Potential max possible sentence has to be 6 months or more

· How to select jury

o Jury taken form a pool of people that must be a fair cross-section of community

o Individual cant be prevented for discriminatory purposes

o Every juror must be impartial

· Limitations on the courts / Requirements for Statutes

o Legality principle- No person may be convicted and punished unless their conduct was defined as criminal

§ No judicial crime creation- the judiciary does not have the power to criminalize conduct that is not already criminalized. The legislature needs to do that.

§ “No crime without law, no punishment without law”

§ This is a due process requirement

§ No ex post facto laws

§ Keeler v. Superior Court

· A man was charged w/ murder when he attacked his pregnant wife, resulting in the child being still born. 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.

o 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, this there would not be fair notice to the defendant

o Steps of Statutory Construction to find meaning of “human being”

§ Ct first looked at the statute and found the statute did not include fetus in its definition of “human being.”

§ Then looked at precedent. There was none here

§ So, to make its own decision, it looked to legislative intent to see the meaning.

o 3 Kinds of void for vagueness claims

§ Indefinite/Vagueness

§ Overbreadth

§ Unintelligible Terms (very rare)

o 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 of guilt

§ A person would not have notice when men of common intelligence might differ in interpreting the meaning of the statute

§ Three reasons we require definite, narrow statutes

· 1. We need fair notice and “sufficient warning” so we can constrain behavior to law

· 2. We do not want to chill constitutionally protected behavior

· 3. Discriminatory Enforcement- Reasonable man cannot differ in its application (like police officers enforcing the law)

§ In Re Banks- Ct found “Peeping Tom” statute was not vague or overbroad b/c the two words at issue, “peep” and “secretly” had clear meanings as defined by the ct so reasonable men would agree on the meaning of the statute.

o Statutory Clarity / Overbreadth

§ A statute is unconstitutionally overbroad when it prohibits innocent conduct or criminalizes conduct that the legislature did not intend to criminalize

§ Statute must e clear and specific enough to constrain prosecutors

§ Morales v. City of Chicago:

· The statute criminalizing loitering by gang members was found to be vague and overbroad because it gave no clear notice what was meant by “no apparent purpose,” allowed criminal conduct like playing basketball while waiting to carry out a drug deal, but disallowed innocent conduc

hypothesis of innocence

o Enough circumstantial evidence can prove beyond a reasonable doubt

· Burden of Proof v. Burden of Persuasion

o 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

o Persuasion- After the burden of proof is met- burden to persuade the jury to believe your evidence

· Jury Nullification

o Jury nullification occurs when the government has proven every element beyond a reasonable doubt but the jury still acquits

o Generally jurors do this for reasons of conscience, when social stigma is too great

§ Sometimes, it can be a statement from the people that the law is unfair

o Jurors have the power to do this, but not the right to be instructed that they can (State v. Ragland)

§ Judge can instruct the jury it “must” follow the law

o Jury can ignore the facts and acquit for ANY reason

o Power comes from the 5th Amendment- no double jeopardy, so jurors have the final say

o Policy:

§ Pro: Gives slack in enforcement of law; safeguards against morally unjust or socially undesirable outcomes; prevents gov. tyranny

§ Con: Too discretionary; takes power from legislature and undermines the system; can be used in undesirable way; jurors take an oath to uphold the law

· Punishment

o Methods of Punishment

§ Incarceration

· Jail= local; Prison= federal or state

· Policy: Suggestion we have too much incarceration. US has highest incarceration after Rwanda. Declined since 2009.

o Theories

§ Utilitarianism – Justification lies in the useful purposes that punishment serves

· Punishment should be used to better society.

· Punishes to deter and rehabilitate

· Good consequences out weigh the bad. Founded on the belief that humans will try to come out the best for themselves- so punishment needs to be certain/severe enough to make the detriment of committing a crime outweigh the benefits.

· Role of punishment: Under utilitarianism, both crime and punishment are evils because they both result in pain to individuals + society.. so pain of punishment is undesirable unless it is useful to prevent a greater amount of pain in the form of a future crime

o Future looking purpose: The punishment is not inflicted for the wrongdoing, but in order to prevent a future crime, under utilitarianism, the wrongdoer will not be punished.

· Types of utilitarianism

o Specific/individual Deterrence- the defendant is punished to stop him specifically from committing crimes in the future

o General Deterrence- the defendant is punished in order to send a message to others that they should not commit crimes

o Incapacitation- Imprisonment temporarily puts criminals out of general circulation, preventing them from committing more crimes.

o Rehabilitation- the criminal law can prevent future crime by reforming an individual by providing them with employment skills, psychological help, freedom from addiction, etc.