CRIMINAL LAW OUTLINE
Professor Littion – Spring 2010
I. Background
a. Criminal law today is all statutory
i. Guilt requires statutory prohibition
1. Plain language doesn’t always settle the matter
ii. That is a Constitutional requirement
1. The Constitution places limits on what statutes a state may enforce
a. E.g. no cruel and unusual punishments, due process, etc.
b. Criminal law is distinguished from civil law by the moral condemnation it causes from the community
c. Proof of guilt at trial:
i. Two separate burdens of proof
1. Burden of production
2. Burden of persuasion
ii. Burden of production lies on the prosecution in regard to offense
iii. Burden of proof lies with the defendant for the production of affirmative defenses
iv. Burden of persuasion could really belong to either party; the outcome could be influenced to go either direction
1. Burden of persuasion standard placed on the state is beyond a reasonable doubt, which also helps to limit the power of the state. The burden is also Constitutionally required. The burden on the state skews errors in favor of the D.
2. In Re Winship: The case that says that state must prove every fact that is necessary to prove every element of the crime charged BRD.
v. Presumption of innocence is a social utility argument that limits the powers of the state
d. Dershowitz:
i. Rule #1 of criminal law: All D’s are guilty
ii. Rule #2 of criminal law: All lawyers and judges know Rule #1
e. Apprendi v. NJ: says that if a sentencing factor raises the length of the sentence, then it becomes an element of the defense and must be proven beyond a reasonable doubt.
f. Owens v. State: D was found behind the wheel of an automobile parked on a private driveway at night with the lights on and the motor running. D was intoxicated and there were empty beer cans in the vehicle. Neighbors reported a suspicious vehicle and police came to investigate.
i. In this case, two unstrained and likely inferences can arise. One is that the vehicle and its driver had arrived the in the driveway from somewhere else. The other is that the driver had gotten into and started up the vehicle and was about to depart for somewhere else.
ii. D was given DWI, convicted at a bench trial, and appealed, arguing that there was insufficient evidence to support such a finding.
1. There was no record of his license to prove that it wasn’t his own driveway. Only circumstantial evidence existed that suggested he wasn’t at home, such as the neighbor reporting the strange vehicle.
iii. Judge says there can be proof beyond a reasonable doubt even if prosecutor doesn’t eliminate all far-fetched explanations.
iv. The appellate court says “we must look for a tiebreaker”. The appellate court standard was whether a rational trier of fact COULD reasonably have reached that result
v. HOLDING: The totality of the circumstances are, in the last analysis, inconsistent with a reasonable hypothesis of innocence. It makes drawing of the inference of guilt more than a mere flip of a coin between guilt and innocence. It makes it rational and therefore within the proper purview of the factfinder. Conviction affirmed.
g. Standards of reasonable doubt:
i. Moral certainty
ii. Firmly convinced of guilt v. real possibility of innocence (research indicates that firmly convinced of guilt was the most pro-defendant)
iii. No hesitation
iv. Doubt based on reason, common sense
II. Principles of Punishment
a. Punishment theory: Moral justification for inflicting the harm of punishment on some persons must exist
b. Consequentialist theories: Based on the idea that we need to deter crime. Consquentialists say that right actions and policies bring about the best consequences, the most good. Utilitarianism is the most popular consequntialist theory.
c. Utilitarian theory of punishment: is justified only if it prevents greater pain. Punish to prevent/deter future crime and harmful behavior, not to punish the actions; the past is the past
i. General deterrence: threat of punishment to all
ii. Specific deterrence: threat to offender to not repeat the offense
iii. Incapacitation: can’t commit crimes from jail against the outside world
iv. Rehabilitation: maybe people won’t commit crimes again if rehabilitated
1. Not very successful in real practice.
v. Satisfies the desire to punish wrongdoers
vi. Eliminates private vengeance
vii. Don’t want to punish if it’s useless: people that can’t be deterred (children, insane, etc)
viii. Don’t punish if there is a less painful way to prevent the harm
1. If civil liability will adequately deter, no incarceration
ix. Only forward-looking; can lead to punishments that far outweigh the crime
d. Retributivism:
i. Punish because wrongdoers deserve to suffer
ii. Punishment is what justice requires
iii. Backward looking
iv. Future consequences are irrelevant
v. Does not ever punish the innocent, because they don’t deserve to suffer
e. Mixed theory:
i. We need punishment to deter(utilitarian), but we should only punish people that are guilty (retributivist)
f. The Queen v. Dudley and Stephens: Two sailors eat the cabin boy while they are starving and lost at sea because he’s in the worst shape of anyone on the boat.
i. Should they have been punished?
1. No: they’re resorting to their basic instincts and just trying to survive; you can’t deter this sort of behavior (no utilitarian argument for punishing them. Retributivsts wouldn’t want to punish them if what they did wasn’t morally blameworthy.
ii. HOLDING: Found guilty by the judge and sentenced to death, but the crown converted the sentence to 6 months
g. People v. Superior Court (Du): D owned a store that suffered from frequent shoplifting. Girl put an orange juice in her backpack. D accuses girl of shoplifting and pulls on her sweater. They have an altercation. Girl sits the juice on the counter and turns to walk away and D throws a stool at her. Then D shoots her in the back of the head with a .38 that was illegally modified after a robbery and returned to them only shortly before the incident. D was found guilty of voluntary manslaughter which is an intentional act committed in the heat of passion. Jury didn’t buy the accident argument.
i. In the presentence report, D argues that she’s unlikely to commit another crime, but that she was not remorseful.
ii. Presumptive sentence in this case was 6 years incarceration; judge gave her one year probably. The judge basically disregarded the jury’s verdict. The judge gave the sentence and then suspended it, which means if she had violated the parole, then it would have been reinstated.
iii. Court says that the statute is aimed at criminals who arm themselves when they go out and commit other crimes, it is not aimed at shopkeepers who lawfully possess firearms for their own protection. The D had no criminal record. The D participated in the crime under circumstances of great provocation and duress.
1. Determines D is unlikely to re-offend.
h. Weems (1910): Cruelty include punishments “greatly disproportionate” to the crime committed
i. 8th Amendment: No cruel and unusual punishment provision
i. Coker v. Georgia (1977): This is a death penalty case. D in this case argued that the death sentence that he received for rape was unconstitutional.
i. HOLDING: it is unconstitutional to execute someone who didn’t kill anyone
ii. The court said the punishment is excessive if:
1. Makes no measurable contribution to acceptable goals of punishment
2. Is grossly disproportionate to the severity of the crime
j.
ay that a fetus was a “human being”. There was no reported decision to put D on notice.
1. The majority says that they can’t interpret the statute more broadly because D would not have been on notice that he could be charged with this crime.
a. Separation of powers (jurisdictional issue): the decision on what law should be applied is up to the legislature
b. Constitutional due process—fairness—D must be on notice
i. When an “unforeseeable state court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime”
ii. Dissent: have to figure out what the words mean, regardless of the time. They try to interpret in light of law’s purpose or spirit
iii. The legislature did change the statute to include “fetus” after this case
d. MPC 1.02 Purposes, Principles of Construction: it doesn’t’ enforce the rule of lenity. Instead, it says the court is to construe things to support the general purposes of the section
e. The standard for clarity of a statute is that a man of common intelligence should be able to read it and understand what conduct is prohibited.
f. Boyce v. Motor Lines (US 1952): Held that due process means D can expect “no more than a reasonable degree of certainty” and that punishment is ok if you go “perilously close” to proscribed conduct
i. A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols,…inevitably limit the specificity with which legislators can spell out prohibitions.Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an ear of proscribed conduct shall take the risk that he may cross the line
g. In Re Banks (1978): questions the constitutionality of a “peeping Tom” statute which prohibits secretly peeping into a room occupied by a female. D argues that the statute is overly broad (as it prohibits innocent behavior) and overly vague.
i. The court starts to analyze the statute by trying to understand the words, and looking to how the words are normally used and understood. The general assumption is that each word adds meaning to a statute
1. Peep: to look slyly, as if through a crevice
2. Secretly: implies some wrongful intent, here the intent to invade someone’s privacy
ii. Original statute said “secretly peeping into a room occupied by a female”, but after the judicial construction it said “spying on a woman with the wrongful purpose of invading her privacy”.
iii. The legislative intent “is to be ascertained by appropriate means and indica, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, the preamble, the title, and other like means”. Other indica considered are legislative history of an act and the circumstances surrounding its adoption, earlier statutes on the same subject, the common law as it was understood at the time of the enactment of the statute, and previous interpretations of the same or similar statutes
iv. HOLDING: the statute was sufficiently definite
