Alexander, Criminal Law, Fall 2014
I. INTRODUCTION TO CRIMINAL LAW
a. Theories of Punishment
1. Crime and Punishment in general
a) Defined
• A crime is “an act or omission and its accompanying state of mind which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community”
• Punishment, generally, Δ suffers punishment when an agent of the government, pursuant to authority granted to the agent by virtue of Δ’s criminal conviction, intentionally inflicts pain on Δ or otherwise causes Δ to suffer some consequence that is considered unpleasant
b) Crimes cause social harm; punishment corrects that harm
c) Criminal law is the study of what it takes for a person to actually be blameworthy of a crime in the sense that they should be punished
d) Criminal law is different from tort law in that it is statutory and variant; it cannot be built upon; the law is the law
2. Retributive
a) Basic belief – backward looking, we punish criminals because of an act that is morally wrong and deserves punishment; innocent do not deserve punishment
b) “Three Flavors”
• Strong – criminals MUST be punished (Kantian – less common)
• Middle – someone who is deserving of punishment will be punished unless other factors outweigh reasons to punish, like cost (common)
• Weak – if someone deserves to be punished it is permissible to punish them if you have other reasons in addition (too weak to be retributivist?)
c) Criticisms
• Too standard- sometimes situations call for different responses
• What about when a person undergoes a character change? i.e. commits murder but while in prison finds g-d
• Are all types of killing the same? Mercy v. hit man
• What about situations like littering where punishment does nothing to stop them from doing it again?
• Fails to deter some crimes – innocent people will continue to suffer
3. Utilitarian or Consequentialism
a) Basic belief – forward looking – the point of punishment is to prevent people from acting criminal; there is no limit to punishment so long as it means it will prevent future crime and benefit society
b) Theories within
• General deterrence – deter people from committing crimes in general, not concerned with guilt or innocence of person just what will make others not want to behave in the same manner
• Specific deterrence – addresses a specific individual who may need more or less punishment to deter from committing a crime in the future
• Rehabilitation – indeterminate sentencing where you wait until individual is “cured”
• Incapacitation – completely stops an individual, makes it impossible i.e. life in prison
c) Criticisms
• Persons are used as a means to an ends
• Any innocent person can be punished so long as it benefits society
4. Rules v. Standards
Rules
Standards
A rule is a norm, which is given specific definition to everyone regardless of values i.e. a stop sign, speed limit sign
A standard is more abstract, will vary from person to person i.e. “drive safely”
Give you fair warning
No fair warning – can’t exercise rights without worry
Make behavior expectations clear
Don’t know exactly how you should behave
You can predict others behaviors
Can’t predict and coordinate with others
They are rigid, creating loopholes
Flexible
Over time become bad/oudated
Never outdated, adapt with time
a) We want the flexibility of standards but the certainty of rules – dilemma
b) Criminal law prefers rules
5. The Constitution – limits statutory criminal laws
a) Bill of rights
• 1st – no limits on freedom of speech
• 4th – evidence obtained wrongly must be dismissed
• 8th – no cruel and unusual punishment
• 14th – binds state to fed. Constitution, due process, equal protection
b) Doctrine of Legality
• No crime without law – no ex post facto crimes
c) Rules of lenity
• When a statute has multiple interpretations it should favor the accused
d) Fair notice laws
• Individual should have fair notice their conduct constitutes a crime
• Problematic because it assumes we consult crimes
e) Statutory clarity
• Easily understood
• Should not allow for policy makers to interpret meaning
• Biased in favor of the accused
II. Problem Set 1: Burdens of Proof and Production; Presumptions
Dressler
a. Burdens of proof –
1. Prosecution has burden of introducing evidence to a case
2. Prosecution must produce all evidence as to elements of the crime and must prove BARD
3. If any element is not proved then Δ is acquitted
4. The defending party may have burden of production with defenses
In re: Winship – “The Winship Doctrine”
· Innocent until proven guilty
· Prosecutions job to persuade factfinder BARD for all claims
· Δ satisfies burden of production and Ԓ must disprove it so long as it is an element of the defense i.e. “unlawful murder” Δ would only have to introduce defense to say it was lawful and Ԓ would have to disprove
Mullaney v. Wilbur – prosecution must prove guilt and level of culpability BARD
Facts: Appellant was convicted of murder. Appellant argued that it should be incumbent upon the state to prove the absence of the heat of passion beyond a reasonable doubt.
Issue: Whether the Maine rule that requires a defendant to prove that he acted in the heat of passion by a preponderance of the evidence is a violation of due process.
Holding: It is the prosecution’s duty to prove the absence of the heat of passion beyond a reasonable doubt if it is properly presented.
Patterson v. New York – Supreme Court held affirmative defenses were constitutional
Facts: Appellant was charged with and convicted of the second-degree murder of his estranged wife. Under New York law, the state
permits a person to raise an affirmative defense that he “acted under the influence of extreme emotional disturbance.” The defendant bears the burden of persuasion by a preponderance of the evidence. Appellant sought to invalidate the statutory scheme by claiming it violated due process because it improperly shifted the burden of persuasion from the prosecutor to the defendant.
Holding: In a criminal case, the defendant who raises an affirmative defense shall bear the burden of persuasion unless the affirmative defense is a presumed element of the offense under the statute.
Leary v. United States- required reading for PS#1 but have no clue what the significance is
Facts: Δ was arrested for possession of marijuana. Δ had crossed border into Mexico but was turned around by customs. On the turn around, he tried to explain the situation when customs noticed what appeared to be marijuana seeds on the floor. Customs searched car and found marijuana seeds/cigarettes on daughter. Δ appealed arrest.
b. Presumptions
1. The Nature of a Presumption
a) Upon proof of A, a factfinder must (or may) presume fact B
b) Fact A = basic
c) Fact B = presumed
d) Mandatory v. permissive
Type
Requirement
Effect
Constitutionality
Mandatory Rebuttable
If A then B unless Δ disproves it, generally by a preponderance of evidence
Shifts the BOP to Δ regarding the presumed fact
Unconstitutional if the presumed fact is an element of the crime
Mandatory Irrebuttable (Conclusive)
If A then B no matter what
True types hard to come by, but proves B when A
Unconstitutional if the presumed fact is an element of the crime
Permissive
If A then maybe B
Basically, proves B unless Δ introduces evidence to rebut it even though this isn’t stated – logically, jurors will believe B if they have no reason no to
Not unconstitutional per se however may be if irrational
Problem Set One – MPC § 1.12
1. The legislature is considering passing one of several variations of a statute making it a criminal offense “to purchase or use marijuana with the belief that it has been illegally imported into the United States.”
a) 1st Variation: The statute further provides that “belief in illegal importation may be presumed by the trier of fact from proof beyond a reasonable doubt that the defendant knew that the substance was marijuana.”
• Proved Fact (BARD) à Presumed Fact
• Aßrational connectionà B
• Rational connection = more likely than not/greater than 50% – but how do we decide if it is greater than 50 percent?
• Permissive presumptions create an incentive for the defendant to produce evidence to the contrary but does not place the burden of proof on him
• Where the jury knows the defendant can produce evidence and does not, raises the likelihood of the existence of the presumed fact
• Permissive presumption = Proved fact + absence of evidence to the contrary
b) 2nd Variation: The statute further provides that “belief in illegal importation must be presumed by the trier of fact upon proof beyond a reasonable doubt that the defendant knew that the substance was marijuana in the absence of evidence to the contrary.”
• Mandatory rebuttable presumption à alwanconstitutional when presumed
• If this was constitutional, this would be a lesser difficulty for the defendant than the 4th variation
• In the 4th variation, the D bears the burden of proof; must prove by a preponderance of evidence
• In the 2nd the D is only forced to produce evidence to create a reasonable doubt in the juries mind and the prosecution has the burden of proving otherwise
• Therefore mandatory rebuttable presumptions are actually more favorable to Δ than affirmative defenses in some cases yet we allow affirmative defenses and disallow MRP
• Consider this inconsistency
us offenses – though generally unconstitutional
2. Crimes of possession – “possessing” itself is not act but some act occurred at some point to receive or in failing to get rid of it
f. Common law
Robinson v. California- abolition of status crimes
• California law made it a crime to be addicted to narcotics
• Court made these analogous to other illnesses – mental, common cold
• These are not punishable, nor should addiction be
• No constitutional authority to treat R as criminal
• Retributivist outlook
Powell v. Texas- clarification of Robinson
• Texas statute prohibited getting or being drunk in public
• P argues that Robinson’s precedent showed that he couldn’t be guilty for an act that was a result of his chronic alcoholism
• Judges disagreed, the difference was the Robinson stated you could not convict for an illness, P was committing a “voluntary” act of getting drunk in public; he was not on trial for his alcoholism
• Slippery slope if case was ruled any other way – ok for addicts to rob banks, etc.
g. Comment on the MPC
1. No person shall be convicted by a crime not including “a voluntary act or the omission to perform an act of which he is physically capable”
2. Where “act” is a “bodily movement whether voluntary or involuntary”
3. Involuntary movements such as reflexes, convulsion, unconsciousness, sleep, hypnosis
4. Possession is an act if the possessor knowingly had it or failed to dispose upon it after awareness in a timely manner
5. Exceptions – violations where maximum penalty is fine or civil penalty
Problem Set 2: MPC § 2.01
1. Defendant, who admits intending to kill Victim with a knife, sneaked up behind Victim and drew back her knife. Witnesses testify that Defendant’s arm then came down rapidly, plunging the knife into Victim’s back, killing him. Defendant offers evidence that she is afflicted with St. Vitus Dance, a nervous disorder that causes uncontrollable bodily movements. Defendant testifies that although she intended to kill Victim at the moment she drew back the knife, and never ceased intending to kill Victim, the forward thrust of her arm was caused by her St. Vitus Dance. Write a half-page memo dealing with whether, if her evidence is believed, Defendant can be convicted of murder, which in relevant part is defined as “intentional killing.”
v Key issues
o Voluntary act and time-framing
o Deviant causal chain
§ you intend to do something, you do it, but you don’t do it the way you contemplated it.
She has the intent and voluntarily pulled her arm back. The rest is involuntary.
·
Hypo 1 (same issue as this question- def who has the mens rea and commits some voluntary act but something intervenes so the result she wanted is brought about in an involuntary way)
· What if she’s in a cabin on a cruise ship. According to her plan, she pulls her arm back, crosses the cabin to stab someone. The cruise ship pitches and she flies forward and stabs him. Is that intentional homicide?
§ Suppose you’re a juror & you must convict the stabber of intentional or reckless homicide. Which is a more fitting charge? We assume that people have free will. Whatever their intention, until they’ve executed it, it can be taken back.
§ You could argue it’s unintentional b/c she’s not able to take it back b/c something unexpected happened. You could also say she was reckless b/c she’s standing with a knife on a pitching cruise ship – she’s taking a substantial risk. Depending on how we conceptualize the act, there’s always going to be a voluntary act somewhere. The fact that she brought her arm back voluntarily is a voluntary act.
Hypo 2: If a person knows he’s subject to seizures and it’s dangerous to drive unless he takes medication. He doesn’t take it, starts driving safely and then has a seizure. The car goes out of control and hurts someone. Is he culpable for reckless homicide? Yes. It’s not that the voluntary act he engaged in that was harmful – he was driving the car safely. It what’s happened when he was no longer a voluntary actor that caused the harm.
