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Criminal Law
University of Georgia School of Law
Amann, Diane Marie




5Ws & H – who what where when why & how:

Who – defendant, prosecutor, jury/judge, police
Why – justification / value
What – conduct, elements (actus reus & mens rea)
Where – jurisdiction (become federal if crosses state borders or is a national interest)
When – attempt, conspiracy
How – causation


Basis of requirement – how do judges determine the “cost”
Prosecution must prove guilt – D does not have to prove innocence
Reasonable doubt – judge must give D benefit of the doubt

Evidence raises a reasonable doubt about guilt as a matter of law à judge must direct a verdict for the D

Conviction must be reversed for error in jury instruction on the “beyond reasonable doubt” standard – any attempt to quantify reasonable doubt may impermissibly lower the prosecution’s burden of proof, and is likely to confuse rather than clarify. (this is a qualitative measure, but is hard to define)

EX: WINSHIP – can a judge in a juvenile delinquency case apply a lower standard of proof? Brennan takes vail off benevolent criminal juvenile system – being found guilty still has many consequences.

Beyond reasonable doubt is a foundational constitutional principle – the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which he is charged.
Harlan à “it is better to let a guilty man go than convict an innocent man” – reasonable doubt standard is a prime instrument for reducing the risk of convictions resting upon factual error


Community’s safeguard against what jurors believe are morally unjust / socially undesirable criminal convictions that judges might impose – power to do so because they don’t have to explain verdict and no person can be prosecuted for the same offense twice.

However, a judge in a criminal case is not required to instruct the jury on the issue of jury nullification or allow defense counsel to argue the issue in front of the jury.


Prosecution Friendly: (Majority opinion): Jury is protected & can keep deliberations secret – individual liberty is very important; Aggressive way to deal with government and should only be used to show a problem in the system; Allowing this instruction would cause a lot of hung juries & thus an unbalanced system so it should remain informal

Defense Friendly: (Dissent): Lack of candor from the judge or jury considering the jury’s right to nullification is unjustifiable and harmful; juries can more justly apply the principle if judge’s lay out the details of the principle.

EX: DOUGHRETY – Ds claimed their actions were morally justified for a political platform.

< >JUSTIFICATION OF PUNISHIMENTWHY PUNISH? – All three facets of punishment call for justification:

< >General justifying aim – why do we set up social institutions that impose punishment?Distribution – why do we impose punishment on a particular individual?

1) Deterrence, favors punishment sufficient to discourage specific D and general public from committing future crime;

2) Retribution, seeks to satisfy outrage of victim and society over crime by compelling a morally blameworthy D to pay back society through punishment proportionate to severity of crime;

3) Rehabilitation, uses punishment to diagnosing, treating, and correcting whatever led the D to commit crime;

4) Incapacitation, favors lengthy incarceration to prevent commission of crimes by wrongdoers who pose a continuing danger as long as they are in free society; and

5) Social Cohesion, sending a message to wrong doers and society that criminal behavior is not tolerated. Thus, society has a greater idea of what is right and wrong, which promotes faith in the system.

Degree – what justifies the amount of punishment imposed in a given case?

REGINA V. DUDLEY – what are the legal consequences of the cannibalism, & why does the state care?

< >D claims necessity – necessary to engage in criminal behavior to avoid greater evil of starvation. Court rejected this argument – issue with line drawing for murder. RESULT: no justification under law for this particular offensetension on what is considered immoral behaviorVALUES: non-consequentialist, individual v. society, harm, morality, social science, rationality, proportionality, selectivity & randomness issues in the criminal justice system UTILITARIANISM Justification depends on its consequences: pain inflicted by punishment is justifiable if it is expected to result in a reduction in the pain of crime that otherwise would occur – useful purpose punishment serves.

< >Human beings generally act rationally and will weigh punishment v. reward Forward-looking à seek to justify punishment on the basis of the good consequences Criticisms à justifies using persons solely as a means to an end and can justify the punishment of a person known to be innocent of a wrongdoing



< >General deterrence / prevention – punished to convince general community to forego criminal conduct in future. D’s punishment teaches us what conduct is impermissible; instills fear of punishment in would-be criminals and to a limited extent habituates us to act lawfully.Individual deterrence – D’s punishment is meant to deter D’s own future misconduct by intimidationINCAPACITATION – imprisonment prevents him from committing crimes in outside society during period of segregation.

< >Specific deterrence à not able to come after you again – just need they out of societyunjustifiable unless D’s likely future anti-social behavior is expected to result in more pain to society than the pain inflicted on D and society REHABILITATION

< >Reduce future crime by reforming the wrongdoers – people who favor rehabilitation say that it’s better than punishment based on fear or the “hurt the criminal, he deserves it” attitude of retributionCriticisms à doubt that criminals can be reformed, don’t make the victims feel good RETRIBUTIVISM Retributivists believe that punishment is justified when it is deserved – humans generally possess free will and may justly be blamed when they choose to violate society’s morals.

< >KANT – morally fitting that offender suffers in proportion to his desert/culpable wrongdoing just deserts – “that which one deserves” || eye for an eye || “I pay back”Looks backwards in time – attribute importance to offender’s behaviors in the past, and the blameworthiness Negative retribution – only guilty may be punished; necessary but not automatically sufficient condition Positive retribution – guilt is a sufficient condition of just punishment; just society may / must punish the guilty Criticism à intentional infliction of pain through punishment is senseless/cruel and legitimizes hatred


< >Assaultive retribution – morally right to hate criminals because he has harmed society and morally right for society to hurt him backProtective retribution – punishment is a means of securing a moral balance in the society. Everyone is similarly benefited / burdened and criminal destroys that balance, so it is fair to require repayment of that debt. Victim vindication – “right a wrong” reaffirms victim’s worth & represents a defeat of wrongdoerSOCIAL COHESION

Expressivist – punishment is justified as a means of expressing society’s condemnation.

< >Educative by informing individuals that community finds specific conduct improper and we value victim’s worthchannels community anger away from personal vengeanceIt is a form of moral condemnation and serves to stigmatize the offender for his offenseELEMENTS OF JUST PUNISHMENTLEGALITYA person cannot be punished unless her conduct was defined as criminal before she acted.

Nulla poena – no punishment w/o law || Nullum crimen – no crime w/o law

< >Need to give fair warning as to conduct that could subject to prosecution, control discretion of police, prosecutors, and juries – bars retroactivity and vagueness by requiring previously established law that must be announced in reasonably clear terms so average person does not have to guess meaning Rationale à prevents arbitrary and vindictive use of laws, enhances individual autonomy and maximizes opportunity of individuals to pursue own purposes by reducing risk that one’s lawful conduct will be punished ISSUE – in a society who values non-punishment of innocent, risk of punishment for unsuspecting by not knowing Nearly all American jurisdictions have now abolished the common-law doctrine that courts can create new crimes

EX: MOCHAN – D was charged with intending to debauch/corrupt/harass/embarrass the victim. D appealed because the conduct charged was not a criminal offense und

ule: if statute is not clear on face, court will seek to interpret in manner that best gives effect to legislative intent.

< >Judges consider the legislative history of an act and the circumstances surround its adoption, earlier statutes on the same subject, and the common law as it was understood at the time of enactment of the statute, and previous interpretations of the same / similar statutes Also take grammar into consideration RULE OF LENITY à Principle of legality that requires fair warning and puts significant discretion on police so that they’re only interfering with people who deserve to be interfered with – the more that something doesn’t give fair warning (if not precise enough) can be less likely to be found as notice (sliding scale of discretion)

When criminal statute is subject to conflicting reasonable interpretations, statute should be interpreted in favor of the D.

< >Rule of lenity is not constitutionally compelled, but is said to support the principle of legality by preventing a court from inadvertently enlarging the scope of a criminal statute through its interpretive powers.Lenity doctrine only comes into play if a statute is ambiguous – not ambiguous unless after looking at everything, can make no more than a guess as to what congress intended – two or more equally reasonable interpretations EX: Papachristou v. City of Jacksonville – city ordinance prohibited a person from being “vagrant.” On its face, the language is vague and gives police virtually unfettered discretion to determine who is a vagrant. MPC doesn’t recognize lenity and instead requires that criminal statutes be construed according to their fair imports and that ambiguities be resolved in a manner that furthers the general purposes and the specific purposes of the provision involved.

EX: CITY OF CHICAGO V. MORALES – Chicago enacted ordinance that provided “whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place w/ one or more other persons, he shall order all such persons to disperse and remove themselves from area and defined loitering as remaining in any one place with no apparent purpose.” SC found the ordinance was unconstitutionally vague

< >“with no apparent purpose” is inherently subjective because application depends on officer on the sceneLegality issue – nobody knows when its ok to sit on bench and chat with your friend Only sanctionable w/out apparent purpose – even if evil purpose, you still cannot be sanctioned RULE: Vagueness can invalidate a criminal law for either 2 independent reasons: Fails to clearly state (to the point ordinary people can understand) what conduct it prohibits (so how can people conform behavior to follow law if no fair notice? –too vague) Authorizes or encourages arbitrary and discriminatory enforcement (can’t violate requirement that a legislature establishes minimum guidelines to govern law enforcement)


Prosecution Friendly: By worrying about the vagueness, we place too much worry on the criminal’s rights when we should be worrying about the individual rights of the law-abiding innocent members of the community

Defense Friendly: (Majority) When things are too vague they become a “standardless sweep;” Takes away power from legislature and gives to police officer which is not okay b/c of racism/ageism/sexism, etc; INDIVIDUAL RIGHTS

Ordinance might have been constitutional if loitering had been defined to mean to remain in any one place with no apparent purpose other than to establish control over identifiable areas, etc.