Criminal Law Outline – Fall 2012 – Professor Uhlmann
PART ONE: INTRODUCTION
Introduction to Criminal Law
Broad Analysis
Prosecutorial Discretion: Prosecutor decides which charges to bring. Consider strategy.
Elements: Which elements must state prove for each charge? Can state prove each element BRD?
à Attendant Circumstance: fact or condition present at time D engages in prohibited conduct / result
Defenses: Can defendant raise any defenses?
Legal Issues: Do legal issues bar prosecution? (E.g. sufficiency of evidence, error jury instruction)
Criminal Law
As distinguished form civil law, criminal law regulates conduct that necessarily induces the moral condemnation of the community.
Prosecutorial Discretion
In representing the state, I reserve the right to prosecutorial discretion, which allows me to decide when to bring charges. The power of prosecutorial discretion (1) confers upon me a great sense of responsibility (e.g. David Uhlmann for the United States), but it also (2) gives me an opportunity to strategize (e.g. to avoid overcharging, an consequently losing credibility). In the present case, I would charge TK with X, and TK, with Y, but I would not charge TK with Z, because I fear I may not have sufficient evidence to prove each elements of Z beyond a reasonable doubt, which may, in turn, cause me to lose credibility with the jury.
Proof Beyond a Reasonable Doubt
à Prosecutor must prove every fact, element BRD. In re: Winship. BO (1) production, (2) persuasion.
à High bar reflects seriousness of criminal charges and reduces risk of wrongful conviction.
à Presumption of Innocence: Harlan: “Worse to convict an innocent man than to let a guilty man go free.” Still, reasonable doubt does not mean all doubt.
Owens v. State (Conviction based on Circumstantial Evidence)
à Juries are free to assign weight to circumstantial evidence alongside other evidence. But convictions based solely on circumstantial evidence are upheld only if circumstances are inconsistent with any reasonable hypothesis of innocence. In Owens v. State, the court upheld defendant’s conviction where his drinking was at a terminal stage, evidenced by his sleeping next to empty beers.
Curley v. US (Appellate Review of Evidence Insufficiency)
à Where defendant appeals, arguing that there was insufficient evidence to convict, the appellate court shall view all evidence in the light most favorable to the prosecution. See, e.g. Curley v. US, where the court held that any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt at trial, affirming the lower court ruling.
à Miscellaneous Note on State Appeals: In consideration of defendant’s 5th Amendment protection from double jeopardy, the state can only appeal from a pre-trial dismissal or suppression of evidence pre-trial. The state can also appeal after a trial, but only when the jury has returned a guilty verdict that has been set aside. The state cannot appeal from an adverse jury ruling.
Pre-Trial Motions
à Motion to Suppress Evidence: Even if the government files an information or issues and indictment, defendant can evade charges by making pretrial motions to suppress evidence.
à Directed Verdict of Acquittal: The defense can assert (at multiple times throughout the trial) that the government failed to overcome the presumption of innocence. The judge can grant a directed verdict of acquittal, as matter of law, if (1) there is no question material fact, and (2) no reasonable person could come to different conclusion. See CB 18, n. 3, stating that the critical point in deciding whether to grant directed verdict of acquittal is “the existence or non-existence of a reasonable doubt as to guilt.” à Plea Deal: The defendant may avoid the original charges by pleading out.
Trials
à 6th Amendment / Jury Trials: The 6th Amendment guarantees the right to a Speedy and Public Trial by an Impartial Jury. The Constitution guarantees defendant’s right to a jury trial to prevent oppression by the government (e.g. to safeguard against biased judges and prosecutors. The jury decides cases involving non-petty offenses, where the sentence would exceed 6 months. Baldwin v. NY. Once D has right to a jury trial, there is only a bench trial where both D, state waive trial by jury.
à Leniency: Juries vs. Judges: The prosecutor is more likely to secure a conviction in a jury trial than a bench trial. See CB 26, n. 4, stating that from 1992-2002, juries returned a guilty verdict 86% of the time, (against 54% from judges). But you never know. See Juror from Missourah.
à Voir Dire / Juror Examination: A juror who is deemed biased in favor of (or in opposition to defendant is removed for cause. See, e.g. Batson, where the court held that a juror cannot be removed based on his race or gender.
Jury Nullification
Even if prosecutor proves beyond a reasonable doubt every element of the crime, the jury may – for any reason – refuse to convict. See Heyward, emphasizing the importance of jury nullification because the jury is the “conscience of the community,” the protector against judicial tyranny. See also CB 26, n. 5, where Paul Butler argues for race-based jury nullification for minor offenses.
State v. Ragland
But see State v. Ragland, emphasizing deference to the legislature of 12 jurors in holding that a jury is not entitled to a jury instruction regarding jury nullification.
US v. Luisi
See also U.S. v. Luisi, holding that nullification defeats the jury’s purpose of uncovering the truth.
Theories of Punishment – What justifies punishment?
à See CB 33, n.2, stating that punishment is “designedly” harmful or unpleasant.
Retribution
Common Law
à Just desserts: Violators of moral, societal norms deserve punishment. Theory is backward looking.
à Criticism: Infliction of pain senseless if it does society no good
à See Emmanuel Kant – The Philosophy of Law, stating that the last murderer in prison ought to be executed before a society dissolves itself.
MPC 1.02 à (1)(a) Forbid and prevent conduct that threatens harm to individual or public interests
Utilitarian
Common Law
à In meting out punishment, we ask, what is the societal benefit? Theory is forward looking.
à We conduct a cost (to defendant) / benefit (to society) analysis.
à Criticism: Some doubt efforts to reform the “criminal mind.” – Also denunciation theory: expressive
MPC 1.02à (1)(a) Forbid and prevent conduct that threatens harm to individual or public interests
à (1)(c) Safeguard conduct that is without fault from condemnation as criminal
Deterrence
Common Law
à General Deterrence: make an example to deter others
à Specific Deterrence: deter person charged with crime
MPC 1.02à(2)(a) Prevent commission of offenses
Incapacitation
Common Law
à Incapacitate criminals to prevent more crimes
MPC 1.02à (1)(b) Control persons whose conduct indicates they are disposed to commit crimes
Rehabilitation
Common Law
à Incarcerate to provide skills & treatment to criminals who violate moral, societal norms.
MPC 1.02à (2)(b) Promote correction and rehabilitation of offenders
Restorative Justice
Common Law
à Offenders take responsibility for actions; victims gain closure.
Retribution vs. Utilitarian
Retribution: Dudley v. Stevens
In analyzing the tension between retributivist and utilitarian theories of punishment, Dudley v. Stevens is informative. In Dudley, the defendant, starving to death on a capsized ship, led the effort to kill and eat and weakest link on the ship. The court adopted a retributivist approach, convicting defendant, providing him “just dessert,” if you will. A utilitarian approach would likely lead us to a different conclusion, as convicting defendant would have no deterrent effect, specific or general.
Utilitarian: Du
But see People v. Du, a modern case that hits closer to home. In Du, where a Korean grocer shot a black female teen, the court relied on a utilitarian approach. The judge, after convicting Du of manslaughter, merely sentenced her to probation where incarceration was unnecessary to (a) protect society via incapacitation, (b) rehabilitate defendant, or (c) deter others.
à Racial Component: There is a shift away from indeterminate sentencing in most states because it can lead to inequities in sentencing across different demographic groups. A shift is taking place in federal courtrooms, too, where judges must conform sentences with Fed Sentencing Guidelines.
Constitutional Limits on Punishment
8th Amendment: Cruel and Unusual Punishment (And the Proportionality Principle)
The 8th Amendment states that excessive bail shot not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. The court, at times, has read a proportionality element into the 8th Amendment, holding that sentences are constitutionally disproportionate when they are excessively long or severe given the offense. It may be worth noting that the MPC includes words supporting the same objective. See MPC 1.02(2)(c), stating that one of the provisions governing sentencing is to safeguard against excessive, disproportionate, arbitrary punishment.
Coker v. Georgia
See Coker v. Georgia, holding that the death penalty is a grossly disproportionate sentence for rape of an adult woman, where a man escaped prison, committed armed robbery, stole a car, and raped a woman. But see the Coke dissent, asking (doubting) whether every person convicted of murder is, in fact, more morally depraved than every rapist.
Ewing v. California
See Ewing v. California, affirming defendant’s sentence (based on the 3 strikes law) of 25-life for his third offense – stealing 3 golf clubs, valued at $400 total. 3 strikes laws, by nature, represent a legislative shift toward incapacitation and deterrence theories of sentencing. In the court’s plurality view, Ewing did not merely steal three clubs, he did so after being convicted of two other felonies. In affirming Ewing’s sentence, the court (1) showed deference to the legislature and (2) affirmed the notion that courts may rely on various theories in sentencing. To an extent, the court also seemed to adopt Justice Kennedy’s four principles of proportionality: (1) Primacy of legislature, (2) Variety of sentencing theories, (3) Nature of fed system, (4) Objective: can’t permit grossly disproportionate sentences. In Justice Thomas’ concurrence, he affirmed judgment solely due based on his non-belief in the existence of any proportionality principle. Justice Stevens dissented, however, arguing that the sentence was cruel and unusual, given Ewing’s serious health issues, as the sentence would certainly last for the rest of Ewing’s natural life.
14th Amendment: Due Process Clause
Ex Post Facto
If defendant’s conduct was legal when committed, the government cannot make it illegal retroactively through the enactment of law. Due Process demands that defendant receive fair warning that his conduct is illegal. This notion gains further support from MPC 1.02 (1)(d), where one purpose of criminal law is to give the public warning as to the na
Imposing upon defendant liability for his omission (rather than his act) creates difficult line-drawing problems, and important though it may be, omission liability can lead to morally repugnant results.
Common Law
See Jones v. U.S., holding that criminal acts by omission only apply where there is a duty imposed by (1) Statute, (2) Contract, (3) a Special Relationship (e.g. parent / child, spouse / spouse… look for dependence), or (4) by Secluding a helpless and endangered person so that others cannot provide aid. The common law also imposes a duty to act where (4*) defendant creates the risk to which victim is exposed and subsequently fails to act on victim’s behalf, and (5*) where defendant has offered voluntary assistance, followed by an omission.
MPC 2.01 à No big difference.
See MPC 2.01(1), stating that defendant may only be held liable for an omission to perform an act of which he is physically capable.
See MPC 2.01(3), stating that D may not be held liable for an omission unless (a) the omission is criminalized by the law (e.g. statute) defining the offense, or (b) D has duty, otherwise imposed by law, to perform omitted act.
People v. Beardsley (Adultery, Seclusion)
See People v. Beardsley, shielding defendant from omission liability in the absence of a special relationship, where he dumped his inebriated and unresponsive mistress (as opposed to his wife, with whom he would have had a special relationship) in a secluded room, and subsequently failed to act by calling the police as she lay dying. However, as we discussed in class, a strong argument can be made, per Jones v. U.S., that defendant should be held liable for secluding his mistress in distress (thereby preventing others from helping her) and subsequently failing to provide assistance.
Nix (Girlfriend Heard Girl in Trunk, Nondisclosure)
See People v. Nix (CB 139, n.3), emphasizing the distinction between non-disclosure and active concealment, where defendant’s boyfriend kidnapped a girl, put her in his car trunk, and drove 5 days with defendant in the passenger seat as the victim screamed. The court did not hold defendant liable for merely observing the crime because she did not take affirmative steps to conceal it.
Kitty Genovese (Bystander Effect, Line-Drawing Problem)
See Kitty, 40 Years Later (CB 139, n.4), reflecting on the line-drawing problems inherent to omissions liability law. When Kitty screamed, “He stabbed me!” dozens heard her cries, but nobody helped or called the police. Kitty’s case demonstrates the bystander effect, where large groups of people observe a crime, and individual members of the group feel less responsible to offer assistance than they would in a non-group situation. Imposing a duty to act in such cases presents a difficulty line-drawing problem. How many (and which) people do we hold liable?
Cash (Bathroom Rapist, Rationale for not Imposing Duty)
The limitations for imposing omission liability can lead to morally repugnant results. See Outrage Follows Cold Reply to Killing (CB 140, n. 5), refusing to hold defendant liable for failure to act where he discovered a friend struggling with (and ultimately raping) a 7-year-old girl in a public bathroom stall.
Barber v. Superior Court (Pulling the Plug, Medical Setting)
See Barber v. Superior Court, holding that there is (1) no duty to continue treatment once it have proven ineffective, and (2) no duty to use life-preserving equipment once its use becomes futile, where doctors were acquitted of murder for pulling the plug on a patient with the patient’s family’s consent.
Challenges in Imposing Legal Duty For Omissions
1. Omissions are inherently more ambiguous than affirmative acts. E.g. suppose a rabid dog chases a child. Is the defendant who shuts his door in the child’s face more guilty than the defendant who refuses to open his door to the child?
2. Line Drawings Problems: Who is responsible? (See Kitty)
3. But bystanders can make matters worse by trying to help
4. Liberty – Limiting conduct more common than mandates
MENTAL STATE
à Mental state required described in statute (usually) à Culpability: statutes in some jurisdictions do not require specific state of mind; instead they merely require a culpable state of mind
à Ignorance of Law is no defense (unless law explicitly says it is)
à Mental state requirement tracks all elements of charge (unless statutes says to contrary)
à MPC mens rea (MPC 2.02) is a mess. Not used in courtroom. Statute used instead.
