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

Criminal Law, Watson, Fall 2010
What is Criminal Law?
I. Criminal Law
A. Crime
1. Definition – social harm; harm against society
2. There are the direct victims of crimes and indirect victims of crime (families, society where crime occurred)
II. Burden of Proof – “beyond a reasonable doubt”
A. Have to prove to this point because of the presumption of innocence until proven guilty
B. The burden is so high because what's at stake is the loss of life or liberty; want to be sure the person is guilty
C. When someone is acquitted, that doesn't mean they are innocent, it means that they state did not meet its burden of proof; the defendant was found not guilty
III. Criminal v. Civil
A. Public v. private
1. Criminal law – public law; the case is being brought by the government; prosecuted by a public attorney
2. Civil law – private law; suit being brought by private parties
B. Burden of proof
1. Criminal law – “beyond a reasonable doubt”
2. Civil law – “preponderance of the evidence”; lower burden
C. Punishment
1. Criminal law – stigmatizing punishment overseen by the government; punishment is society's outrage over the crime; will always have to say you were convicted of a crime
2. Civil law – monetary compensation or specific performance; much less stigmatizing
IV. General Elements of Criminal Offense
A. Actus reus – the act
B. Mens rea – the mental element
V. Types of Crimes
A. Misdemeanor – punishable by fine, community service, incarceration in a local jail for a period usually up to a year, probation
B. Felony – more serious; likely to be incarcerated in a state jail, a.k.a. prison or penitentiary; can be put to death or sentenced to life in prison
VI. Sources of the Law
A. Statutes – as long as a statute is constitutional, it trumps all else; court interpretation cannot interfere with statute
B. Constitution
C. Precedents
1. Case law
2. Stare decisis – the judge is bound by precedent of cases in his/her jurisdiction; not bound by precedent out of jurisdiction
D. Model Penal Code
Life of a Criminal Case
I. Beginning – a crime has been committed, the police are called, and the police arrest someone
II. Processing – the police take the suspect to the local jail or police station and is “booked”
A. Booking serves as an informal charge against the person
B. What happens?
1. Suspect gives personal information and information about crime
2. Take mug shot and fingerprints
3. Run background check
4. Search person
C. Suspect can't be held for long without a formal charge, which comes from DA
1. Misdemeanor – formal charge presented in an “information”; DA will submit affidavit at hearing, which judge will usually approve
2. Felony – formal charge requires indictment from a grand jury (usually 16-23 people, requires a majority, generally)
3. Indictment
a. All of the elements of the offense must be laid out; at trial, all of these elements must be proven beyond a reasonable doubt to get a conviction
b. If D is indicted, then issue true bill; if no true bill, D is not indicted
4. Grand Jury
a. Prosecution is only side to argue and rules more lax
b. Judges roll is limited; jury has more influence
c. Closed to public
d. Just trying to determine if enough evidence to think that D may have committed crime; low burden of proof
III. Arraignment – short meeting in which D enters a plea
A. If D pleads not guilty, a date is set for trial
B. If D pleads guilty, date is set for sentencing
C. D may demur (motion to quash) – asking judge to throw out indictment or information
1. Grounds for demur
a. Not sufficient evidence
b. Not all elements of offense are in indictment
c. Even if facts are true, doesn't constitute a crime
2. If demur is granted, which they usually aren't, the indictment is thrown out and case dismissed
a. Prosecutor can appeal
b. D can be charged again for same crime because was never adjudicated
3. If demur is overruled, D can't appeal because the D will still get his or her day in trial
D. About 10-30% of cases that reach arraignment are dismissed
1. Motion to quash is granted
2. DA may be too busy and decide case isn't worth time
3. DA may feel there is insufficient evidence
IV. Plea Bargain – prosecutor will offer D a lessor punishment if the D will plead guilty; this usually occurs before the arraignment because once at the arraignment, the judge has to approve any plea bargain
V. Trial – only 10-15% of felony cases go to trial, and even less for misdemeanors; about 2/3 of felony cases that go to trial result in convictions, and even higher conviction rate for misdemeanors
A. Jury impaneled
1. Trial jury known as the petit jury
2. Felony – usually 12 jurors and decision must be unanimous
3. Misdemeanor – jury of 6
B. Pretrial motions
1. Not in the presence of jury
2. Both sides can make, but usually more defense
3. Usually have to do with insufficient evidence and the indictment
4. Also about what evidence can and can't be admitted
C. Opening statements
1. Made by each side about what the case will show and what evidence will be presented
2. Prosecutor goes first
3. Defense may then make opening statement or can wait until the prosecution's case has been presented
D. Government (prosecution) presents case
1. Defense can cross-examine witnesses
2. After government presents case, defense can move for a directed verdict
a. Even without defense presenting their case, the prosecution did not present sufficient evidence showing D was guilty
b. Usually overruled
E. Defense presents case
1. Affirmative defense – when D's actions fall within the statute so that D is not guilty of breaking that statute (e.g., self-defense of an imminent harm); must be proven by D by burden of persuasion
F.  Final motions – defense usually repeats its request for a motion for a directed verdict; preserves D's grounds for appeal
G. Closing statements – can't introduce anything new; can only summarize what has been said
1. Made by both sides – prosecution usually goes first, then the defense gives their statement
2. Prosecution usually gets to make a rebuttal after defense
a. Prosecution gets rebuttal because this is their only chance to prosecute D because of double jeopardy
b. D doesn't get rebuttal because D can appeal
H. Post-trial motions
1. After closing statements, jury retires
2. Attorneys go to judges chambers for post trial motions – usually argue about what instructions the jury should be given
I. Interlocutory appeal – appeal before the end of the trial, based on post-trial motions; only filed by government, asking higher court to give guidance before trial ends
J.  Jury receives instructions and then goes to deliberate
VI. Verdict
A. If jury can't decide unanimously, there is a “hung jury” and there is a mistrial
B. Not guilty – there is an acquittal; prosecution can't appeal, unless very rare circumstances
C. Guilty – D convicted of offense; sentencing trial, which is like a mini-trial, will follow
1. D moves for a JNOV (judgement not withstanding the verdict)
2. If JNOV not granted, D will appeal
VII. Appeal
A. Based on
1. Judicial bias
2. Violation of constitutional law
3. Ineffective counsel
4. Exc

elease; will remember the punishment and hopefully this will prevent him from committing more crimes; trying to help them rebalance the cost/benefit of committing the crime
I. The cost/benefit analysis is based on the “value” of the crime, against the likelihood of being caught, likelihood of being punished, and severity of punishment
II. Don't want to make punishments too severe
A. Society will think justice system is unfair
B. People may be more willing to commit more serious crimes because the punishment is the same as for minor crimes
C. Some people aren't capable of doing cost/benefit analysis, so won't be deterred
(3)  In America, we have slow, uncertain, but severe punishment
(a)  Research shows that the certainty of being punished for a crime is directly related to the rate of that crime
(b)  Research also shows that the severity of punishment for a crime is not directly related to the rate of crime
b. Rehabilitation – reform; therapeutic conceptualization of crime as a “disease” rather than a vice; time of punishment may be more severe because if don't get better, have to stay
(1)  Prison was first designed with rehabilitation as main goal
(2)  America's first and main theory for a while in the 1900s was rehabilitation, but lost support in the 1970s
(a)  No political backing
(b)  Studies, pointing to the high level of recidivism, showed that, at least in prison, rehabilitation didn't work, and was therefore a waste of time, money, and resources
(c)  Proponents of rehabilitation argued that if the resources were committed, in most cases, rehabilitation could work, and that it wasn't working as well in the 1970s as it had been earlier because the prisons were overcrowded and weren't enough resources
(3)  Today, it is generally thought that rehabilitation doesn't work in prison; in fact, today prison is usually thought of as a “school for crime”
VII. The Sentencing Phase
A. Procedure
1. Usually the judge decides the sentence, based on a short trial
2. The jury is required to determine the sentence in death penalty cases
3. Some states require the jury to submit sentence recommendations to the judge
B. History of sentencing and punishment
1. 1800-1870 → crime thought of as a social disease, generated by industrial cities; increase in prisons in rural areas
2. 1870-1900 → crime thought of as a medical disease, proper care would cure defendant; creation of parole boards, who were experts that could best detect when cured
3. 1900-1940 → criminality was viewed as inherited; many states provided for the sterilization of criminals
4. 1940-1975 → crime was seen primarily as a sign of psychological disturbance; behavior modification programs blossomed; psychiatrists added to parole boards
5. 1980s → commission made to look into sentencing; result was the Federal Sentencing Guidelines
C. Federal Sentencing Guidelines (were mandatory)