Criminal Law Outline

        I.             Guilt and Innocence
a.       Presumption of Innocence: role of the trial court is to enforce this presumption; if jurors might or might not have a reasonable doubt of guilt, then the case will go to a jury.
                                                               i.      Appellate level: if a case is appealed on these grounds, all the court has to decide that the decision from the trial court was ‘more likely than not’ since they are not triers of fact.
b.       Reasonable Doubt Standard: value determination, prevents innocents from going to jail and commands respect and confidence (that we are sure when we convict)
                                                               i.      In re Winship: must prove beyond a reasonable doubt for ‘every fact necessary to constitute the crime.’
1.       MPC: must prove beyond reasonable doubt for every ‘element’ of the offense charged
                                                             ii.      Standards
1.       Moral Certainty: must have an abiding conviction of the truth of the charge
2.       Firmly Convinced: doesn’t require proof of absolute certainty, must be a real possibility in order to find not guilty.
3.       No Waver/Vacillation: no abiding or stable conviction of guilt
4.       No Real Doubt (MOST COMMON): not necessary to prove beyond all possible doubts. No mathematical certainty. Reasonable = “real doubt based upon reason and common sense.”
c.        Jury Nullification: power comes from the Fifth Amendment Double Jeopardy Clause: once D is acquitted for a crime, cannot be reprosecuted for that crime.
                                                               i.      Support: safeguard against morally unjust or socially undesirable convictions
                                                             ii.      Criticism: too many examples of abuses (lynch acquittals), violation of oath if they find guilt under the law
                                                           iii.      Instructions: many ignore the mention of nullification; while there is a power, not a right
1.       very few courts allow instructions as to this
2.       if a juror makes it known that he intends to nullify and disregard the law, may be excused
      II.            Principles of Punishment
a.       Utility: looks back at the act and forward at the results of punishing
                                                               i.      Reasons to punish, in order of common acceptance
1.       General deterrence: to the extent that punishing will prevent others in society from committing similar crimes
2.       Individual deterrence (including incapacitation): preventing the actor from committing crimes in the future
3.       Reform: change the offender, make him not want to commit crimes in the future
                                                             ii.      When to not punish
1.       Groundless: no mischief to prevent
2.       Inefficacious: where it cannot act to prevent the mischief
3.       Unprofitable/too expensive: where harm caused > harm prevented
4.       Needless: may be prevented some other way
                                                           iii.      Problems
1.       Can punish innocents
2.       Means to an end (general deterrence)
3.       Is rehabilitation possible?
b.       Retribution: only backward looking (harm and moral culpability)
                                                               i.      Reasons to punish
1.       Societal harm: since criminal has harmed society, it is moral and right to harm him back
2.       Protective retribution: punishment is a means of securing a moral balance in society
a.      Because we all exercise self-restraint, he destroys the equilibrium, so he owes a debt to society
3.       Victim vindication: punishment corrects the false claim that everyone is morally equal, since the criminal obviously isn’t equal
                                                             ii.      When to not punish: when not morally blameworthy (culpable)
                                                           iii.      Problems
1.       Infliction of pain is never a good thing (utilitarian argument)
2.       Glorifies anger/hatred
c.        Queen v. Dudley and Stephens (cannibalism case)
                                                               i.      Retributive arguments: no guilty state of mind, therefore not blameworthy. However, not under duress and made the choice (immoral) to murder and eat.
                                                             ii.      Utilitarian arguments: general deterrence (if it makes the news, ppl will be on notice). However, no rehabilitation or specific deterrence.
 
   III.            Proportionality and the 8th Amendment
a.       Solem Factors (to determine proportionality)
                                                               i.      Gravity of the offense and the harshness of the penalty
                                                             ii.      Penalties for similar crimes in same jurisdiction
                                                           iii.      Penalties for the same crime in other jurisdictions
b.       Ewing v. California: career criminal. Has committed felonies/misdemeanors over the years. 25-life based on three strikes. Triggering offense was a ‘wobbler:’ felony that can be reduced to a misdemeanor (prosecutorial discretion).
                                                               i.      Opinion (O’Connor, Kennedy, Rehnquist): narrow proportionality provision in the 8th amendment for non-capital cases. Must look not at strictly proportionality between the crime and sentence but rather whether it is ‘grossly disproportionate.’ Here, look at the offense in the context of the offender and CA’s penological goal. Sentence justified by State’s interest in incapacitation and deterrence and supported by his long, serious criminal record.
                                                             ii.      Concurrence (Scalia): no proportionality here, but he concurs. Says plurality is based on legitimate penological goals. Worried that court is acting as super-legislature.
                                                           iii.      Concurrence (Thomas): no proportionality principle in the 8th amendment.
                                                           iv.      Dissent (Breyer, Stevens, Souter, Ginsberg): concedes that proportionality in non-capital cases is rare. But have their own three factors: (1) Length of the prison term in real-time (25-life); (2) Sentence-triggering conduct (stealing golf clubs); (3) Criminal history (‘minor’ felonies). Given the disproportionate nature of the crime to the punishment, outside of the three strikes law, Ewing would not have gotten this sentence.
c.        Note that in essence, when a recidivist statute is upheld, the court is basically saying that the utilitarian factors in setting criminal penalties outweigh the retributive principle of proportionality.
d.       Harmelin v. Michigan: possession of 650+ grams of narcotics = mandatory LWOP.
                                                               i.      Opinion (Scalia, Rehnquist): no proportionality in the 8th amendment. Rejected the Solem test (first two prongs) as too subjective.
                                                             ii.      Concurrence (Kennedy, O’Connor, Souter): doesn’t want to reject Solem; however, would apply it only when an inference of disproportionality is present. Determined that offense was serious = no Solem.
                                                           iii.      Dissent (White, Blackmun, Stevens, Marshall): in order for a crime to warrant a certain sentence, must do so in every instance. Drugs = LWOP does not work. HYPO: if we made it LWOP for parking tickets, court would def. find it unconstitutional.
   IV.            Background to American Criminal Law
a.       Sources
                                                               i.      Common Law: judicially created, from England. Adopted by the colonists.
                                                             ii.      Legislature (statutes): codified the common law.
                                                           iii.      MPC (ALI): created in the 1960’s, adopted by roughly 35 states (IL)
                                                           iv.      Constitutions: limitations on criminal law. States either follow US or are more protective of individuals.
b.       (Relevant) Constitutional Amendments
                                                               i.      4: unreasonable search and seizure
                                                             ii.      5: due process
1.       Reasonable doubt standard
2.       Double jeopardy
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