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Constitutional Law II
University of North Carolina School of Law
Kennedy, Joseph E.

Ch. 1
I.        Criminal Law in a Procedural Context: Pre-Trial
A.     Trials are the exception rather than the rule in the judicial system.
B.     Criminal process: There are caveats and exception to almost everything. This is general!
1.      Crime
2.      Investigation
3.      Arrest à Charging document
4.      Court (arraignment some places) (get a lawyer at this point by ct; sometimes bail)
5.      Preliminary hearing in court
6.      Either
a.       Information, or
b.      Grandy jury indictment, depending on which jx
7.      Either
a.       Pretrial motions, or
b.      Entry of guilty plea (or both), or
c.       Trial
II.     Criminal Law in a Procedural Context: Trial by Jury
A.     Right to a trial by jury given in 6th amend to US constitution. Requires the right to a trial by jury in all prosecutions for which the max potential punishment exceeds incarceration of 6 months.
B.     Impartial jury right: Also given by 6th amend.
1.      Prospective jurors = venirepersons
2.      voir dire = examination given to venripersons.
a.       If a venriperson’s responses during voir dire demonstrate partiality, the juror is excused “for cause.”
b.      Defense and prosecutor can exercise a limited # of “peremptory challenges,” or challeges not based on cause.
III.   Proof of Guilt at Trial
A.     “Proof beyond a reasonable doubt”
1.      In re Winship, Sup Ct case from 1970
a.       Sup Ct ruled that Due Process clause of Constitution required the prosecutor to persuade the factfinder “beyond a reasonable doubt of every fact necessary to constitute the crime charged.”
i.         Sup Ct’s justification:
(A) Reduces risk of factual error
(B) Accused has at stake interests of immense importance
(C) The use of this std is indispensible in commanding respect and confidence of community in application of criminal law
(1)   People shouldn’t be in doubt as to whether innocent people are being condemned.
b.      Justice Harlan’s concurrence: “it is far worse to convict an innocent man than to let a guilty man go free.”
B.     Enforcing the Presumption of Innocence
1.      Owens v. State: Totality of the circumstances must make one of the inferences rational and within the proper purview of the factfinder, and make the other alternative inference less reasonable and its alternative inference thereby more reasonable.
2.      Here, a man

: the justification for punishment is found in the prior wrongdoing.
i.         Difference b/w retributivism and utilitarianism:
(A) Retributivism looks backward and justifies punishment solely on the basis of voluntary commission of a crime. Utilitarians look forward.
(B) Premise of utilitarianism is that people are generally hedonistic and rational calculators, while retributivism is based on the view that humans generally possess free will and therefore may justly be blamed when they choose to violate society’s mores.
ii.       Forms of retributivism:
(A) Assaultive retribution, public vengeance, or social retailiation
(B) Protective retribution
(C) Victim vindication
b.      Utilitarian- believes that justification lies in the useful purposes that punishment serves. Forward looking in the sense that punishment is justified on the basis of the supposed benefits that will accrue from its imposition.
i.         Forms of Utilitarianism: