Criminal Law Outline – Dix, Spring 2017
Introduction to Criminal Law
General Principles of Criminal Law
Development of Modern Codes
Substantive criminal law is largely a matter of statutory coverage. Most jurisdictions have at least moderately comprehensive criminal codes. Some are based on the Model Penal Code (MPC). The Federal Penal Code is still a mess.
Model Penal Code – 1962; Revision 1980
Several major thrusts:
Address general matters of crim law: conduct, state of mind, defensive matters, etc…
Comprehensively and carefully articulate matters
Organization of penalty schemes by degrees
Provisions regarding intent (culpability) emphasize mental element of liability
Criticisms
Code over-expresses culpability when a simple jury instruction would suffice
Relies on deterrence, then treatment and correction.
Retributivism is superior given failures of America’s war on crim.
Creates assumption by leg. that it is responsible for developing substantive crim law, as opposed to courts.
Texas Penal Code – 1856; Revised significantly since
The Texas Penal Code (TPC) is a great example of how criminal coding develops. It has an interesting history that contains some strange quirks.
TPC Burdens of Proof
Required to Plead
Raise (tell jury)
Burden (on whom?)
Burden (strength of evidence?)
Elements
Yes
Always
Prosecution
Beyond reasonable doubt
Exception 2.02
Yes
Always
Prosecution
Beyond reasonable doubt
Defenses 2.03
No
Evidence needed to support
Prosecution
Beyond reasonable doubt
Affirmative Defense 2.04
No
Evidence needed to support
Defense
Beyond reasonable doubt
Exception – Indictment must negate exceptions (2.02(a)).
Defense – Issue is not submitted to the jury unless evidence is submitted supporting the defense (2.03(c)).
Common sense is that there is no reason to require ρ to plead all possible defenses.
Affirmative Defenses
Does not have to be plead by the prosecution: wouldn’t say “D is guilty and was also not insane.”
Rule of Lenity in TPC
Rule of lenity doesn’t typically applied in the TPC as a rule of construction:
TPC 1.05 – “The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”
Criminal Liability vs. Other Liability (Namely Torts)
Consequences are more severe in crim law
Thus, burden of proof is uniquely high à “Beyond a reasonable doubt”
Liability connotes moral blameworthiness
Thus, standard for liability emphasizes subjective ‘intent’ or awareness.
Contrasted with torts that has an entirely subjective standard in negligence (reasonable person)
Greater concern with social/public objectives
Decision to proceed with litigation is started by a public entity (prosecutor). It is mechanically impossible for a victim to start prosecution.
Policy Considerations
Theories of Punishment Justification
Specific Prevention
Punishment prevents offender from committing future crimes
General Prevention
penalizing offenders prevents crimes committed by others
Retribution
punishment is justified simply because δ has committed a wrongful act.
Specific deterrence = offender’s fear of punishment deters future criminal acts
General deterrence = Fear of punishment deters others from committing criminal acts
Distinguished Social Solidary Effect = rests on theory that what offender did was ‘wrong’ and this needs to be supported by criminal policy.
Incapacitation = Offender cannot commit crimes while imprisoned
Moralizing effect = People may refrain from committing a criminal act that is viewed as immoral
Treatment = Rehabilitation of offender prevents future acts of misconduct
Social Solidarity Effect = Social order requires a consensus that criminal behavior is wrong, and punishment maintains this consensus
Channeling Resentment = Other members of society will not feel the need to take the law into their own hands
Always involves balancing of Social Interests and Costs of Criminalizing.
Social Interests and Benefits
Prevention – reduces further costs to society due to destruction, disorder, loss of life, etc.
Retribution – there is significant social value in maintaining morality
Costs of Criminalizing
Direct costs – law enforcement, prosecution, judiciary, prisons, etc.
Personal costs – offenders feel physical discomfort, stigmatization, possible long-term disability.
Incidental costs – improper searches and seizures, invasion of rights/liberties
Impact on society – Enforcement may bring law into disrespect among a significant portion of society.
Other Policy Considerations
Only assure conviction only if…
moral blameworthiness is proven
social dangerousness is proven
Consequences of conviction are proportionate to blameworthiness and dangerousness
Assure precision in legal standard (avoid vagueness)
Con law à criminal standards must be reasonably precise; prohibition against vagueness
Consistency in application
Citizens are owed a degree of notice and opportunity to avoid liability
Significance of Jury Trials
Legal rules must be understandable by jurors and ones they are willing to accept and apply
If they cannot accept the rules, they are unlikely to apply it objectively
Issues and Differences in Approaching the Jury
How much variation from statutory language is permissible and/or desirable?
Allow jurors to understand what is going on in the legislative language OR
Not deviating from the language as to bring a new meaning
Should trial judges be able to summarize the evidence to the jury?
In TX, this is prohibited. By summarizing the evidence, the judge gives away his opinions.
Should the trial judge be able to express an opinion on the sufficiency of the evidence?
Answer is usually no. Especially in TX.
Traditional Criminal Offenses
Most crimes have deep historical roots in English common law. Crimes are generally grouped according to the interest protected:
Offenses Against the Security of the Person
Homicide Offenses
One human being killing another
Murder
Malice aforethought.
Voluntary Manslaughter
intentional killing committed in a heat of passion by adequate provocation
Involuntary Manslaughter
unintentional killing resulting from negligence or unlawful act
Assault
intent to injure or frighten creating a reasonable apprehension of immediate physical harm
Battery
successful assault, with application of force; can be simple or aggravated
Mayhem (maim)
violently inflicted injury rendering victim less able to fight or annoy his enemy
Rape
an act of intercourse with a woman (not wife) against her will by actual or constructive force
Statutory Rape
under a certain age, any girl is not legally capable of giving consent to sex
Sexual Assault
is a modern, broader grouping of crimes related to
easily to Retributivism
Minimizes difficulties in tailoring sentences
Minimizes prejudicial discretion in sentencing
Flexible legal framework – individualization of sentences by considering particular circumstances of the offense and particular characteristics of the offender.
Accounts for considerations that are not measured in guilt.
Penalty should be proportional to blameworthiness
Logically, yields easily to specific deterrence.
Some offenders will not require prolong incarceration for deterrence
Traditionally, judiciary was given little discretion in determining length of sentences.
Recently, there have been criminal sentencing efforts to created more flexible legal frameworks.
Indeterminate Sentencing Movement
More flexible sentencing framework seen as a compromise between legislature and sentencing judges.
Underlying assumption was that rehabilitation (Treatment) was possible.
Resulted in development of parole, indeterminate sentencing, and parole boards.
Legislature set maximum band (10 to 50 years), and minimum band (1 to 5 years)
Sentencing judges chose minimum and maximum within the ranges.
After minimum, parole board could evaluate rehabilitation of offender and possibly release.
Automatically released upon completion of maximum term
Also resulted in probation = supervised liberty in the community without preliminary service of a prison sentence.
When allowed by statute, sentencing judges had discretion to impose probation instead of prison.
Sentencing judge was authorized to use extended terms = impose more severe penalty upon proof that offender had been convicted of prior offenses (ex. Sexual predator).
The Movement for Sentencing Reform (1960)
Criticized Indeterminate Sentencing structure
Rehabilitation (Treatment) is not realistic in many situations
Even if it is, parole offers cannot determine when δ has been rehabilitated
Consistency in respecting blameworthiness and dangerousness has been abandoned.
Pushed for more of a Retributive, or objective approach
Truth in Sentencing = sentence announced in court was actually served by δ.
Reinforced by idea that offenders became aware of inconsistencies in indeterminate system.
Sentencing Reform Act of 1984 = dramatically changed sentencing procedures for federal criminal cases; most significant change in sentencing procedures.
Incorporates a determinate feature – δ will serve at least 85% of sentence actually imposed
Added Supervised Release feature.
Response of determinate features mainly addressed unimpeded discretion of parole board/officers
Sentencing judge and prosecutor still have liberalities
Recent Reform in “Guideline” Sentencing
Administration creates guidelines specifying 52 levels of offense seriousness (ex. How much money is stolen).
Includes general adjustments to account for δ’s admitting responsibility, criminal history, and relative participation (to other criminals).
Aimed at trial court discretion; substantive sentencing law left to legislature.
SCOTUS released series of decisions that left the guideline systems in place but no longer binding on federal trial judges.
