Criminal Law
Professor Neha Jain
Spring Semester, 2018
Table of Contents:
-Procedures and Process (MPC 1.12)
-Justification for Punishment (1.02, 7.01, 7.03)
-Actus Reus (2.01)
acts
omissions
-Mens Rea (2.02)
strict liability
-Mistake of Fact (2.04)
-Mistake of Law
-Homicide (210.0, 210.1, 210.2, 210.3)
degrees of murder
premeditation
provocation
unintended killing
felony-murder
-Causation (2.03)
-Rape
actus reus
mens rea
-Attempts (5.01)
-Complicity (2.06, 5.03)
-Conspiracy
-Defenses: (3.01, 3.02, 3.03, 3.04, 3.05)
self-defense
necessity
duress
insanity
Systemic Aspects
Criminal Population:
Used to be that criminal conviction rare in American history – now commonplace. Current incarceration rate 5 times what it was in 1972; 5% of the world population and 25% of the world’s prisoners; 1/36 people is under some form of criminal justice supervision
Social/ racial concentration – More than ½ of prison population is black and Hispanic. African Americans make up 13% of the population and ½ of incarcerated population; AA and Hispanic receive harsher sentences than whites; majority incarcerated are under 40, poorly educated, mainly minority men; usually some sort of physical/ mental illness, lack of work preparation – “criminal responsibility is real, but embedded in a context of social and economic disadvantage”
Mass imprisonment – when system no longer targets individual offenders and becomes systematic imprisonment of whole groups of the population. Happens not because of rising crime rates, but because policy choices by legislature greatly increased incarceration as a solution to crime
Over-enforcement (above) also = under-enforcement in high-crime communities of color, poor, etc – non-responsiveness of police means some people cannot trust and rely on law enforcement – democratic weakness
Traditionally society’s primary method of protecting safety and security of individuals and the community but now– emphasis on prison as a solution. When new social evils arise, criminal law is seen as the primary solution instead of last resort (ie, people drug and alcohol issues: public health issue vs. jailing)
Very small deterrent effect to adding additional time on a long sentence (ex: “three strikes” mandatory minimum sentences); risk of recidivism declines as people age so long sentences don’t makes sense for offenders unless extremely dangerous
Solution: more narrowly drafted offenses, greater allowances for justifications and excuses is a way to restrain criminal law
Structure of criminal law system:
High volume of cases + shortage of resources and personnel + broad, largely unguided and controlled discretion about what crimes to target and who to arrest individual police officers and charging decision by assistant district attorney assigned to the case + potential public opinion of case/ crime type/ elected positon of prosecutors/ judges/ legislators who use crime as an election strategy= wide discretion and varying outcomes for similarly situated offenders.
Multiple jurisdictions = different laws, plus federal law enforcement; each step (police, prosecutor, judicial system, probation services, prisons, jails highly interdependent – so to reform system, must do entire system)
Prosecutors make decision about whether sufficient evidence to send a case to trial.
Criminal defense systems (5 systems in place):
Non- indigent defendants: only about 20% of criminal defendants hire own lawyers
Hire atty/ team of attys, pay retainer upfront and then hourly. expensive and rare, ie white – collar/ political corruption cases
Person w/ limited resources – pays small fee upfront = lawyers sole compensation. Lawyer can’t withdraw once a case has started, so doesn’t matter whether quick plea deal or trial – lawyers manage ethics to provide good representation and balance time put in for fee.
Indigent defendants: all systems deny defendant right to choose atty – judge, court admin, other official chooses and person must either accept or go without
Appointed counsel system: chosen from list of attys in private practice – conscripts pro-bono work for free (rare) or compensated hourly up to a max – higher for worse felonies than misdemeanors, but not for complex cases
Contract system: lawyer, group of lawyers in private practice agree to represent a number of indigent clients for retainer provided by gov, along with own clients
Defender system – usually in larger cities – agency is funded by gov/ partially private sources, Represent all/ most criminal defendants in jurisdiction. Staff get salary so unlike other systems not under pressure to control time spent on individual cases. But usually high caseload pressure
Judges: appellate judges about split elected and appointed. Other judges mostly elected, basically only western democracy to do this. Lower courts: understaffed, overworked so delay, fast decisions more important than care. Federal judges have fewer cases.
Corrections system: punishment and incapacitation goals, no longer to correct. Probations officers oversee too many; difficulties finding jobs and work after jail b/c of statutory restrictions on getting licenses, public benefits, etc; technology makes it easier for LLs, employers to find history.
Stages:
Investigation (done by police at scene, detectives, finding evidence to prove guilt beyond a reasonable doubt); many crimes not solvable, or only witness
Dismissal and diversion – half of cases get dismissed at early stage by police, prosecutor, or magistrate b/c not enough evidence or have legally acceptable explanation for committing crime, or police/ prosecutor too busy to pursue their cases; or have mental, emotional, social problem other agencies treat better. First offenders usually dealt with like this.
Some jurisdictions have more formal diversions – go do pre-trial diversion program where you are required to meet certain conditions and avoid arrest within a certain period. Once done, will have charges dismissed or if fail case reopened
Pre-trial release: most arrestees brought to magistrate are released, convicted or sentenced w/in 24 hrs of arrest. Remainder may take longer while waiting for prosecutor, judge to find time to hear. Magistrate who does initial proceeding decides to release the defendant pending further proceedings. Most common released on bail to ensure return.
Bail system: Even small amounts often too much for people; bail-bond business charge high fee (like 10% of total bail). Pretrial release programs collect info to assess who has strong ties to the community so can be released w/out bail guarantee so will return for trial, and follow up w/ defendant, but bail is also used in many places.
Bail Reform Act of 1984: can do preventative pre-trial detention in federal cases if release won’t reasonably ensure defendant will return/ for safety of community. Held constitutional in US v. Salerno (1987), pre-trial detention rose (77% now) – more likely for black/ Hispanics than similarly situated whites. 42% in large urban counties for state courts
Guilty plea: 90% + of convictions result from. Take it or leave it or negotiated- very quick. Most Ds plead guilty- think get leniency from judge. Prosecutorial charging decisions and resulting sentencing consequences are probs the main driver of mass incarceration, and this is main stage b/c prosecutor in charge here.
Trial: 3-4% of cases in most jurisdictions; 1-.5% acquitted. But cases that do go to trial impact a lot of what happens on decision to arrest, charge, dismiss, divert, and bargain for a plea
Sentencing
The Determination of Criminal Guilt
Proof Beyond a Reasonable Doubt
If a judge decides that the evidence raises a reasonable doubt about guilt as a matter of law, the judge must direct a verdict for the defendant. Can arise after prosecution rests case, at close of evidence, central concern of jurors, and on appeal
Judge must give the defendant the benefit of the doubt if there is a reasonable doubt, b/c guilty verdict would be improper. Before taking a case away from a jury or reversing a jury’s verdict, judge must resolve all evidentiary doubts against the proponent of the motion, ie must give the prosecution the benefit of the doubt on the question whether its evidence does prove guilt beyond a reasonable doubt
Curley v. US (D.C Cir. 1947):
function of jury: determine credibility of witness, weigh the evidence, draw justifiable inferences from proven fact
function of judge: deny the jury any opportunity to function beyond its province- critical point is the existence or non-existence of reasonable doubt as to guilt; so when a trial judge is passing on a motion for direction verdict of acquittal, must determine whether upon the evidence, giving fully play to the right of the jury to do the above, a reasonable mind might conclude guilt beyond a reasonable doubt. If thinks could conclude a reasonable doubt or no reasonable doubt is fairly possible, must let jury decide.
In Re Winship (SC 1970) Juvenile court convicted a juvenile using a preponderance of evidence standard. SC held due process clause protects the accused against conviction EXCEPT upon proof beyond a reasonable doubt of every fact necessary to constitute the crime.
Reduces the risk of convictions resting on factual error; Commands the respect and confidence of the community in applications of criminal law; Individuals do not fear improper prosecution; “It is far worse to convict an innocent man than to let a guilty man go free” – distinguishes criminal standard from civil standard
Attempts to describe reasonable doubt quantitatively and quantitatively leads to reversals:
McCullough v. State (Nev. 1983) Cannot describe degrees of proof as “a scale of zero to ten”, placed burden of persuasion at 7.5 b/c reasonable doubt is qualitative, quantifying it might impermissibly lower prosecution’s burden of proof.
In re (D.C. 2004) not enough witness was 7-8/10 certain suspect was purp b/c as a matter of law, 80% most likely insufficient for reasonable doubt; 70% def. insufficient evidence to prove guilt beyond a reasonable doubt.
Traditional instructions: Commonwealth v. Webster “It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge”- Cage based on
Cage v. Louisiana (1990) Jury instructions: a reasonable doubt must be…. Such a doubt as would give rise to a grave uncertainty… what is required is a moral certainty not ok b/c “grave uncertainty” and “moral certainty” diluted Winship standard.
Victor v. Nebraska: (1994) distinguished Cage, upheld constitutionality of CA instruction- phrases ambiguous but gave sufficient content to reasonable doubt req.
CA then updated language: deleted moral certainty and describes reasonable doubt as situation in which jurors “cannot say they feel an abiding conviction of the truth of the charge”.
Some states still use moral certainty language: Commonwealth v. Russel: (Mass 2015) but explains means: “highest degree of certainty possible in matters relating to human affairs”
More than 1/3 of juries still convicted when prosecutor’s evidence did not satisfy preponderance of evidence standard- experts believe using less colloquial words more effective, but courts haven’t yet required (Stoltie v. California-C.D. Cal 2007)
Some courts don’t explain at all b/c so difficult to: US V. Hornsby (4th Cir. 2012), and think explaining just confuses rather than clarifies: US V. Walton- (4th cir 2000)
Expansion of Winship
Mullaney v. Wilbur (S.C. 1975) – D was charged with murder. Trial court instructed jury that if state proved that D killed the victim unlawfully and intentionally, then it was murder. If D persuaded jury that the killing was in the heat of passion on sudden provocation, then it was manslaughter. Supreme Court held that instructions violated Winship.
Court held that the due process clause required state not only to prove that D was guilty of criminal homicide, but also to persuade the jury regarding the facts relating to D’s degree of criminal culpability.
Patte
right to hurt him back.
Protective retribution – punishment is a means of securing a moral balance in the society.
Society is made of rules, and as long as everyone follows the rules, an equilibrium exists – everyone is similarly benefited and burdened
If a person fails to exercise self-restraint, he destroys the balance and becomes a free-rider – he benefits from the system of rule without accepting the same burdens
By punishing the wrongdoer, society demonstrates its respect for him – society treats him as a responsible moral agent
Punishment permits the offender to pay his debt to society and to return to it free of moral guilt and stigma
Victim vindication – by committing an offense, a criminal implicitly sends a message to the victim and society that his rights and desires are more valuable than those of the victim. Punishment corrects this false claim – it reaffirms the victim’s worth as a human being in the face of the criminal’s challenge.
Rehabilitation (paternalistic) – prefers to use the correctional system to reform the wrongdoer rather than to enforce compliance through fear of punishment
Making criminals safe to return to the streets AND live productive lives
Mixed Theories of Punishment
Hybrid system – unwilling to punish an innocent person, even if it could be justified on utilitarian grounds.
Negative retributivism – principle that guilt is a necessary condition of punishment
Advocates of hybrid system would punish a wrongdoer to the extent justifiable under utilitarian, rather than retributive principles.
Actus Reus – The Required Act
Voluntariness:
Generally, Voluntary v. Involuntary Acts
Criminal law distinguishes between “genuine human actions, which are susceptible of praise and blame, and mere events brought about by physical causes which happen to involve a human body.”
A voluntary act involves the use of the human mind and is based on the assumption that blame entails some awareness that one’s action can cause harm; an involuntary act involves the use of the human brain, without the aid of the mind – Actus Reus and Mens Rea have to coincide (mental element attached to the conduct)
Involuntary acts are never blameworthy, but voluntary acts are not always blameworthy, b/c law and ordinary morality impose blame only additional requirements are met.
Like where no human action occurred at all – don’t talk about excuse b/c “would make no more sense than would talk of excusing a rock for falling on one’s head”
The Model Penal Code (§2.01)
Provides that no person may be convicted of a crime in the absence of conduct that “includes a voluntary act or omission to perform an act of which he is physically capable.”
Must only “include” a voluntary act in some chain of the events…
MPC 1.13(2) defines “act” as a “bodily movement whether voluntary or involuntary.”
People v. Newton (Cal. Ct. App. 1970) – D was convicted of voluntary manslaughter. He appealed the conviction on the grounds that the jury was not properly instructed on the issue of unconsciousness as a valid defense. D was shot in a struggle with a police officer. It is unclear whether D was shot before or after the police officer. D contends that it was before and that he lost consciousness or was semi-conscious until he arrived at the hospital for treatment.
Unconsciousness is a complete defense to a charge of criminal homicide, if not self-induced, as by voluntary intoxication or the equivalent.
Unconsciousness is not just physically unconscious, but includes a situation where the subject physically acts in fact, but is not, at the time, conscious of the acting.
Martin v. State (Ala Ct. App 1944): Police officer arrested the Defendant at his home and took him onto a public highway, where D was arrested for being drunk on a public highway. Court: Person must voluntarily commit the crime charged in order to be guilty of the crime. The statute the Defendant allegedly violated presupposes voluntary appearance, here not voluntary b/c D was involuntarily taken onto the highway by officer. Court influenced here by MPC 2.02(1) Leading case, but courts disagree about how to apply.
Possession – MPC 2.01(4) says that possession is an action only if the person is aware she has the thing she is charged with possessing even when the statute is silent on the subject. Some courts hold it is sufficient if the D should have known
People v. Low (Cal. 2010)– Involuntarily brought drugs (b/c in socks when arrested) to jail when arrested for driving stolen car. Charged for both. Court distinguished Martin b/c D had clear opp. To get rid of drugs before got to jail
State v. Barnes: (N.C. ct. App 2013): same but drugs fell out of pants. Court: necessary voluntary act occurs when D knowingly possesses the controlled substance
Opposite of Barnes, same facts basically: State v. Eaton (Wash. 2010) absurd to expect the D to provide evidence that would convict him of another crime
