· A crime is a harm against society. Public Law.
· Criminal vs. Tort
o Public vs. private wrong
o Higher burden of proof and persuasion for criminal cases as opposed to tort cases
o Higher social condemnation and stigma in criminal cases
o Punishment in criminal vs. compensation in tort
o Tort – not resulting in loss of life or liberty or having it go on your record
o If a (D) is acquitted of a criminal conviction, justice may be served by the (D) having to pay in a civil suit.
The Career of a Criminal Case
· Formal Charges – can either be an information or indictment depending on whether it’s a misdemeanor or felony.
o Misdemeanor – DA gets an affidavit from the Judge that sets forth the elements of the offense. If the judge agrees then the DA issues an information which is the formal charge.
o Felony – indictment is handed down by the grand jury (this is preliminary to trial proceedings).
§ Ways in which proceedings before a grand jury differ from proceedings at trial:
o Accused attorney not allowed in the court room
o DA presents evidence under loose rules
o The role of the judge is very attenuated and the grand jurors themselves can ask questions
o Burden of proof beyond a reasonable doubt doesn’t apply here
§ If there is enough probable cause, then jury will return a true bill which is a green light that a trial should go forward. From that, an indictment will be issued.
§ The indictment or information must charge every element of the offense that the accused is charged with. Exceptions – affirmative defenses (i.e., self-defense, insanity, etc.) Accused has the burden of raising then it’s up to the state to disprove the offense in order to get a conviction. All of this comes out in the trial phase.
§ Informal proceeding before a judge (whether it’s an information or indictment) where a plea of guilty or not guilty is entered.
§ If the plea is guilty, then there will not be a trial and the judge will then set a date for sentencing.
§ If the plea is not guilty, the judge will set a date for trial.
o Sometimes, the (D) will negotiate for a lesser sentence in return for something else (i.e., ratting out a conspirator, telling where the bodies are, etc.). “Copping a plea.” Judge doesn’t have to accept the deal, but usually will.
§ At this point, the (D) can submit a motion to demurrer (motion to quash) which could be based on three things:
o The indictment failed to state all of the elements of the offense
o There was insufficient evidence
o What the (D) is charged with is not a criminal offense
§ If the judge accepts the demurrer, the judge will dismiss the case and the prosecution can appeal of a higher court. The defense cannot appeal if a higher court grants the prosecution’s appeal. Note – the rule of double jeopardy doesn’t apply at this stage of the proceedings. The prosecution can therefore refile the case. If the judge thinks the prosecution is acting improperly, the judge can dimiss the case with prejudice meaning that they cannot refile.
· Trial Stage
o Jury will be impaneled
§ Federal grand jury and Georgia grand jury – 16-23 people
§ Felony petit juries – 12 people
§ Misdemeanor in state court – 6 people
§ Attorney’s can then ask the jury questions to reveal any biases they may have and how they’re likely to vote. This is called voir dire – speak the truth.
o Pre-Trial Conference – takes place in judge’s chambers. Defense raises any objections to formal charge, what evidence can and can’t come into trial, expert witness to put on the stand. May make another motion to quash.
o Opening Arguments
o DA always goes first. Gives the jury the facts of the case, what evidence will be presented and will frame the issues in terms of what it hopes to prove.
o Defense may delary opening arguments until prosecution has finished their case. Strategic move in their advantage.
o Prosecutions case
o Government presents their case in chief. Calls their witnesses, shows evidence, etc. then rests their case.
o At the end of the government’s case, the defense can move for a directed verdict.
§ Defense is asking the judge to direct the jury to direct a verdict of not guilty because there is no way a reasonable person will believe the prosecution presented their case beyond a reasonable doubt. Usually fails, so the defense will then present its case.
o Defense’s case
(1) At the end of the their case, final motions are presented. The defense will usually renew its motion for directed verdict for 3 reasons:
(a) The defense may feel that the prosecution did not it has presented its case the judge may be more inclined to give a directed verdict ???????????
(b) If the judge has denied the motion for a directed verdict and the defense has presented its case then the defendant has waived his right to appeal but if the directed verdict is reopened then the defense can appeal
(c) If the defendant is found guilty then the defense has a right to make a JNOV: judgment notwithstanding the verdict … asking the judge that there is no way a fair and impartial jury could have heard the evidence and decided that the DA met its burden of proof
o Closing Arguments
o Post-Trial Conferences
§ Discussing jury instructions and to how to frame them.
§ If the judge tells the prosecution he’s going to throw out suggested jury instructions, may be able to file an
t law. A wrongdoer should therefore be punished only if society will benefit somehow. A forward looking punishment theory. Crime is caused by societal circumstances, not so much by individual choice. Regard the offender as a member of society who has gone astray. Several principles underlying this theory:
General Deterrence – by punishing offender, sends message to rest of society that crime doesn’t pay. General intimidation. Punishment serves as an object lesson for the rest of society.
Specific Deterrence – aimed at the individual offender
Incapacitation – if the offender is locked up then they are not going to be able to commit this offense so society is better off Imprisonment accomplishes that.
Intimidation – once this offender has been punished and they have been released then the thought it that the punishment will intimidate and keep that person from continuing to commit offenses. Trying to force the offender to engage in a cost-benefit analysis. Hopefully the costs will be greater then the benefit of the crime
ii. Rehabilitation – may have to incapacitate in order to rehabilitate. Punishment as a therapeutic treatment. Originally, the penitentiary system was set up as a rehabilitation format in the early 19th century America. This remained a popular concept until the 1970s when population in prisons rose. Rehab concept became less popular because:
No political support. Conservatives thought it coddled criminals to much. Liberals thought emphasis should be to attack social and economic sources of crime. Civil libertarians thought it was a form of brainwashing.
Several studies showing rehab in prison just didn’t work. Many people therefore believing criminals therefore could not be rehabilitated. High rates or recidivism. Proponents arguing that the studies were skewed. Effective in 19th century so why not today? Needed more resources allocated to rehabilitation.