Camilla Watson – Fall 2014
· Elements of criminal law
o Actus Reus: Criminal Act – All cases
o Mens Rea: Guilty intent or guilty mind – most cases
o Causation: link between defendants in crime. Only some crimes
§ Proximate cause
o Result – a few crimes
· Criminal v. Tort
o Burden of proof
§ Reasonable doubt = criminal, Clear and convincing = tort
o Criminal is public, government on behalf of society
§ Stigmatizing = criminal, remedies = torts
o Statues/constitution = hard law
o Precedent/common law = soft law…state Decisis
o Model Penal Code = American Law Institute’s idea of what criminal law should be. Not adopted entirely
· Procedure before trial
o Different stages for misdemeanors or felonies.
o Arrest-booked-DA notified-formally charged by prosecutor.
§ Misdemeanor: affidavit (sworn statement) – judge decides if there is enough evidence – issue information (formal charge).
o Diversion arrangements: when a prosecutor drops charges if D goes into a program.
o 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.
o Arraignment- formally charged and enters into plea.
o Pre-trial motions and plea-bargaining. Most cases end in pleas
· Legal Issues before Trial
o 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:
§ Fails to state an element of offense.
ú Crime charged really isn’t a crime.
ú Insufficient evidence.
o If judge accepts demurrer and dismisses charge, double jeopardy doesn’t apply. Prosecution has right to appeal here.
o Plea Bargain – agree to plead guilty to lesser offense in return for prosecution agreeing to lighter sentence.
· Trial Procedure
o If sentence could be longer than 6 months – right to jury. Jury impaneled (voir dire).
§ Petit jury: 12 people whose verdict must be unanimous
ú Grand jury: 16-23 people in Ga. and Federal Systems. Other states- 12- 23.
ú Misdemeanor case: 6
o Pretrial motions: conference between judge and attorneys. Can attack validity of information or indictment, but usually attack the sufficiency of evidence.
§ Determines what evidence can be used; can determine the outcome of the case.
o 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).
§ Post trial conference- discusses jury instructions. If government disagrees with them they can appeal (interlocutory).
ú Prosecution can appeal instructions – can ask for continuance.
o Must have 12 unanimous to convict of a felony.
§ Can appeal
o 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.
Problem with Jones and Green
· Jones: killed his abusive father and then turned himself in.
o Prosecution will focus on: sanity, wasn’t immediate danger, did he try alternatives?
o Defense: abuse, no priors, turned himself in, killed father because he loved his mother.
o Retributive view: should be punished
o Utilitarian: too harsh – lead to people finding the system unfair.
· Green: Stole jewelry & TV from a house. Had a tough childhood, etc.
o Retributive view: should have a smaller punishment for the small crime.
o Utilitarian: repeat offender (recidivism) – specific deterrence if he’s in jail longer.
Theories of punishment
o Based on Bentham
o Crimes are a result of society.
o Deterrence and rehab are underlining elements
o Punishment should not occur if
§ Misapplied: no real offense, or evil was compensated by good (self-defense)
§ Inefficacious: have no effect upon someone’s will because they didn’t intend/know the law.
§ Superfluous: where the same end can be met by different means.
§ Too expensive: if the evil of punishment exceeds the evil of the offense.
§ Forward looking – what could be accomplished from punishment?
§ Evil of punishment must be made to exceed the adv. of the offense.
§ The more deficient in certainty a punishment is, the severer it should be.
§ Where two offenses are in conjunction, the greater offense should have a worse punishment so the person has a motive to stop at the lesser.
§ The greater the offense, the greater reason there is to hazard a severe punishment for the chance of preventing it.
§ General deterrence (message to society); specific deterr
gment a judge could impose had to be in statutory unless jury decides or public facts of previous record(prior conviction)
· Cunningham v. Washington
o After the trial, the judge was given a lot of elements that could increase his sentence.
o S. Ct. clarified that the federal and state guidelines were only advisory.
· US v. Booker
o 50 grams of cocaine would normally give the D a 10 year sentence, but judge enhancers to increase conviction to 30 years
§ Judge determination violated Booker’s 6th amendment right to jury
§ Sup. Ct. “Shouldn’t have used enhancers except prior convictions”
§ Sup. Ct. = Sentencing guidelines are advisory only, but judge not bound to guidelines
· US v. Rita
o If sentence is appealed, a sentence within federal guideline is presumptively reasonable; one that departs is not presumptively unreasonable.
§ Judges have discretion within Apprendi, Blakely, and Booker
o ** 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. **
· Gall V. U.S.
o The supreme court held: if the district court judge departs from the guideline. It is not presumptively reasonable. The judge has to support any variance.
§ Seriousness of the defense
§ Benefit to defendant
§ Need to make restitution to the victim.
· Kimbrough v. U.S.
o Offenses dealing with crack cocaine were much harsher than people who did powder cocaine.
o District court are entitle to inject crack cocaine into the equation
o A major departure from the guidelines should be supported by a very serious investigation.
o If the sentence is outside the guidelines the decision may not be presumptuous.
· Recently added: age, military service, and mental or emotional condition are considered in decreasing trial. Reflect the view that severe punishment is not cost-efficient.
· Modern Guidelines Sentencing