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

Criminal Law
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
§  Purpose
§  Knowledge
§  Recklessness
§  Negligence
o   Causation: link between defendants in crime. Only some crimes
§  But-for
§  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
o   Punishment
§  Stigmatizing = criminal, remedies = torts
·         Sources
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
Criminal case
·         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   Discovery
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
·         Utilitarianism
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.
o   Deterrence
§  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