Criminal Law
Paul Litton
Spring 2011
Principles of punishment
· Principles of Legality
· Principle of Proportionality
· Principle of Culpability
o Actus reus
o Mens reus
This course is about the laws, that is you break them, subject you to punishment (substantive criminal law)
· General part
o Principles common to criminal codes
§ Act requirement (Actus Reas)
§ Mental state requirement (Mens Rea)
§ Causation requirement
· Specific Part (Def. of specific crimes)
o Homicide (Murder, Manslaughter, etc.)
o Rape
o Theft
o Conspiracy
o Defenses
o Justifications (e.g., self-defense)
o Excuses (e.g., insanity)
Chapter 1
Introduction: Setting the Stage
A. Nature, Sources, and Limits of the Criminal Law
· Criminal is different from civil because of the community condemnation which accompanies and justifies its imposition (because we say so) therefore a crime is any conduct, if duly shown to have taken place, that will incur a formal and solemn pronouncement of the moral condemnation of the community
· Punishment (today people are leaning towards the word “treatment” but that word does not relay the moral condemnation of the community as well as punishment)
· Today, Legislatures not judges, define criminal conduct and act through threat of condemnation and punishment. It is imposed by other agencies.
· All criminal prohibitions are statutory (Constitutional req. under due process, made so by S.C.)
· Must be interpreted…
o Common Law (pre-statutory judge made law)
o Policy Considerations
· In order to work in particular instance, these general directions must satisfy these conditions:
o The primary addressee who is supposed to conform his conduct must know
§ a. of its existence and
§ b. of its relevant content
o He must know what circumstances make them applicable
o He must be able to comply
o He must be willing to do so
· Constitutional power checks include:
o Ex post facto legislation (art.1 §§ 9 and 10)
o Cruel and unusual punishment (8th amendment)
o Due process (5th and 14th amendments)
· American Law Institute developed “Model Penal Code”
o Some states have adopted whole sections (no one has adopted in full) while others use merely as a gap filler
o Missouri is heavily influenced by it
B. Criminal Law in a Procedural Context: Pre-Trial
· Criminal Process before trial
o Reporting of Crime (46% of violent and 37% of property)
o Investigation (varies based on police doubt, resources, or presumptions)
o Sometimes an Arrest
o Prelim Hearing (only with “probable cause” = substantial chance that suspect committed offense under investigation)
o Filing of “information” – If judge finds probable cause, prosecutor may file
o “Indictment” – grand jury finds adequate evidence to prosecute and issues
o Pre-Trial Motions or Plea bargain
o Trial (rare)
C. Criminal Law in a Procedural Context: Trial by Jury
· To protect from government or overzealous/corrupt prosecutor or judge.
· Usually 12 jurors who must be unanimous
· Constitution allows as few as 6
· State laws might forgo unanimous for substantial majority
· In order to establish an “impartial jury” there exists the “voir dire” where “venirepersons” are examined
o If found partial, juror is excused “for cause”
o P & D are allowed a limited number of “peremptory challenges” by which a juror is excused without cause
§ Violates 14th amendment is based on race or gender
D. Proof of Guilt at Trial
1. “Proof Beyond a Reasonable Doubt”
· Burden is on the prosecution
· 2 main burdens
o Burden of production (offering of evidence)
o Burden of persuasion (BRD)
· Proof Beyond a reasonable doubt = a “subjective state of near certitude” of guilt and is inherently qualitative to the point that the court believes any attempt to quantify may lower the burden
o In re Winship (it is constitutionally required)– “we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty”
o Says BRD reduces risk of error (Yes, in single direction of innocence conviction)
o Says “every fact necessary to constitute the crime charged” must be proved BRD
o PL says each element must be proven BRD
· Standard for Motion for Directed Verdict
o Could a reasonable jury find D guilty beyond a reasonable doubt?
§ If no, then the motion is granted.
2. Enforcing the Presumption of Innocence
· Why presume innocence?
o Power of the state is so substantial
· Owens v. State (Md.App. 1992) – appellant appeals for insufficient evidence where appellant was convicted of drunk driving when parked in a private driveway with ½ beer between his legs and 3 empties in the back seat, and the officer was called to this situation by a suspicious vehicle call, court affirms stating that matching the suspicious vehicle description was evidence enough that he either had been driving or was not in his own driveway and resolving the inbound or outbound question in a rational manner. The court had to overcome the fact that a “conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence”
o Appellate court is going to decide could a rational jury could have found this guy guilty BRD.
o Appellant is not contesting the evidence, only the decision
o Because jury is
er the chance of detection, the more severe the penalty should be
§ Seeing other punished can deter actors even if they are sure they won’t get caught
o Individual deterrence
§ Punishment must outweigh benefit. For repeat offenders, punishment must be increased.
§ Incapacitation and other forms of risk management (e.g. probation, drug testing)
§ Reform
§ Usually conceived as involving more positive steps to make offenders less antisocial by altering their basic character, improving their skills, or teaching them how to control their crime-producing urges.
· An increase in detection, arrest, and conviction is of greater deterrent consequence than an increase in the severity of the penalty upon conviction.
· Criminology studies show (inconclusively) that the predicted reduction in crime does not outweigh the economic cost of and hardship imposed through incarceration.
· Incarcerating more people for longer terms is justified through specific deterrence by incapacity and general deterrence by dissuading others
· Some studies show that crime rates have not reduced as predicted (3 strikes)
· Rehabilitation was once written off, but new studies are showing its effectiveness.
· We shouldn’t punish those on which punishment does not work, we shall not punish more than necessary
3. Retributive Justifications
· Michael S. Moore – The Moral Worth of Retribution
o The moral desert (culpability) of an offender is a sufficient reason to punish (punishment because they deserve it)
o For a retributivist, society has the duty to punish
o Retributivism only answers the “why” question of punishment and does not address “who, what manner and amount” questions.
o Positive (Moore’s guilt is necessary and sufficient) versus negative (guilt is necessary and innocent should never be punished) retribution
· Immanuel Kant – The Philosophy of Law
o Judicial punishment must be inflicted only because the individual has committed a crime. Utilitarian reasons makes man subservient to others and this will destroy humanity.
o Retributivists would argue that they respect the individual because they are only respecting the choice made by the individual and giving her her due.
